01981302
10-29-1998
Te Tseng Liu, Appellant, v. Louis Caldera, Secretary, Department of the Army, (Defense Language Institute), Agency.
Te Tseng Liu v. Department of the Army
01981302
October 29, 1998
Te Tseng Liu, )
Appellant, )
) Appeal No. 01981302
v. ) Agency No. BSEY9511F0400
) Hearing No. 370-96-X2342
Louis Caldera, )
Secretary, )
Department of the Army, )
(Defense Language Institute), )
Agency. )
)
DECISION
Based on a review of the record, the Commission AFFIRMS the agency's
dismissal of this complaint, for the reasons set forth below. In the
instant complaint, appellant alleged that he was discriminated against
on the bases of race (Asian), national origin (Mainland China), reprisal
(prior EEO activity), age (date of birth: August 27, 1912), and disability
(vision) when he was not selected for a GS-1712-11 temporary Training
Instructor (Chinese Department, Asian School I) under Vacancy Announcement
Number E-40-94.
The Commission's regulations provide for the dismissal of a complaint, or
portion of a complaint, that states the same claim that has been decided
by the agency or the Commission. See 29 C.F.R. � 1614.107(a). See also
Terhune v. United States Postal Service, EEOC Request No. 05950907
(July 18, 1997). In order to determine whether a formal complaint
presents "identical matters" as a prior complaint, three elements of
the complaint are reviewed: (1) the date of the most recent event;
(2) the prohibited bases alleged; and (3) the facts which resulted in
the alleged discrimination. Jordan v. Department of the Treasury, EEOC
Request No. 01964461 (June 10, 1997). Additionally, the complainant
must be the same in each case. Nelson v. United States Postal Service,
EEOC Request No. 01904019 (November 2, 1990).
We agree with the agency's contention on appeal that, in the instant
case, appellant's complaint, as set forth above, was previously addressed
by the Commission in EEOC Appeal No. 01965949 (December 9, 1997), when
the Commission dismissed appellant's appeal as untimely pursuant to 29
C.F.R. � 1614.402(a). In the former case, appellant filed a complaint
with the agency on September 11, 1995, alleging that he was discriminated
against on the identical bases (with the additional bases of sex) as set
forth in the instant appeal, when he was not selected for the identical
position pursuant to the identical Vacancy Announcement. Although the
date of the alleged discriminatory event differs by a few months, the
investigative report from both the former and instant appeal summarize and
review the same selection process. As the agency has previously reviewed
and issued a decision respecting the selection process associated with the
above-referenced Vacancy Announcement Number, and the agency's decision
was subsequently adjudicated by the Commission, we therefore affirm the
agency's dismissal of this complaint, as modified, under 29 C.F.R. �
1614.107(a) for stating the same claim as was previously addressed by the
Commission.<1> See Asensio v. United States Postal Service, EEOC Appeal
No. 01956280 (December 9, 1997) (dismissing complainant's complaint
under 29 C.F.R. � 1614.107(a) because the Commission had previously
decided the identical matter in a previous Commission decision).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you
to file the action without payment of fees, costs, or other security.
See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The grant or denial of the request is within the sole
discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request
and the civil action must be filed within the time limits as stated in
the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
Oct 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We remind the agency of its obligation under our Management Directive
and Regulations set forth at 29 C.F.R. Part 1614 to manage the EEO
complaint process to ensure that identical complaints are adequately
addressed before the appeal process is initiated, in order to ensure
that available resources are maximized.