01A34579_r
02-03-2004
You-Yen Yang, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
You-Yen Yang v. U.S. Department of Agriculture
01A34579
February 3, 2004
.
You-Yen Yang,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A34579
Agency No. 010741
DISMISSAL OF APPEAL
On July 21, 2003, complainant filed an appeal with this Commission
from the agency's final decision, dated June 18, 2003, finding that
complainant was not subjected to discrimination on the bases of race
(Asian), national origin (Taiwan), and age (D.O.B. 1934) when, beginning
January 26, 1998, the agency allegedly:
Undermined complainant's efforts by:
Denying complainant's requests to participate in and observe different
studies in 1998;
Rejecting his ideas and suggestions for new technologies and not
providing him feedback to his proposal in 1998;
Reducing his responsibilities as Lead Specialist on the Automated
Tomographic X-Ray Baggage Inspection System (ABIS) project and not
providing him with any of the required $114,000.00 support funding for
the ABIS project in July 1998;
Excluding him from a meeting involving PPD Economists on March 14,
2001; and
Coerced complainant into early retirement on August 10, 2001 by:
Changing his duty assignment from Lead Technician on the ABIS Baggage
Inspection Project to Statistician on April 23, 2001; and
Giving him a directed reassignment to Raleigh, North Carolina on July
16, 2001.
In mixed-case complaints, the agency must advise a complainant, at
the time it issues a final decision, of the right to appeal to the
Merit Systems Protection Board (not EEOC). See EEOC Regulation 29
C.F.R. �1614.302(d)(3). Although the agency properly notified complainant
of his right to appeal to the Merit Systems Protection Board (MSPB) when
it issued its decision, complainant improperly filed an appeal with the
Commission. If the MSPB determines that it does not have jurisdiction
over the matter, then the agency shall recommence processing the matter
as a non-mixed case EEO complaint. See 29 C.F.R. � 1614.302(c)(2)(ii).
Accordingly, complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 3, 2004
__________________
Date