05981131
06-04-1999
Ching-tsen Bien, Appellant, v. Alexis M. Herman, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.
Ching-tsen Bien v. Department of Labor
05981131
June 4, 1999
Ching-tsen Bien, )
Appellant, )
)
v. ) Request No. 05981131
) Appeal No. 01962488
Alexis M. Herman, ) Agency No. 5-11-085
Secretary, )
Department of Labor )
(Occupational Safety & Health )
Administration), )
Agency. )
)
DENIAL ON REQUEST FOR RECONSIDERATION
On September 3, 1998, the Department of Labor (agency) timely<1> initiated
a request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Ching-tsen Bien v. Department of Labor,
Occupational Safety & Health Administration, EEOC Appeal No. 01962488
(July 27, 1998). EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication of
established policy, 29 C.F.R. �1614.407(c)(2); and the previous decision
is of such exceptional nature as to have substantial precedential
implications, 29 C.F.R. �1614.407(c)(3).
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to DENY the agency's request. <2>
The decision of the Commission in Appeal No. 01962488 remains
the Commission's final decision. The agency shall comply with the
provisions of the Order set forth below. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER(D1092)
The agency is ORDERED to take the following remedial action:
(1) The agency shall revise the "Communication" element of appellant's
May 6, 1994 - November 7, 1994 performance appraisal from "meets" to
"exceeds" and change the overall rating from "Fully Successful" to
"Highly Effective."
(2) The agency shall determine the amount of other benefits due
appellant, such as a monetary award for the "Highly Effective" performance
appraisal, pursuant to 29 C.F.R. �1614.501. The agency shall determine
the appropriate amount of benefits (with interest, if applicable)
due appellant, pursuant to 29 C.F.R. �1614.501, no later than sixty
(60) calendar days after the date this decision becomes final. The
appellant shall cooperate in the agency's efforts to compute the amount
of benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of benefits,
the agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines the
amount it believes to be due. The appellant may petition for enforcement
or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's
Decision."
(3) The agency shall expunge from appellant's official Personnel File
evidence of appellant's May 6, 1994 - November 7, 1994 performance
appraisal and replace it with the revised performance appraisal.
(4) The agency shall provide training to the supervisory officials
concerning their responsibilities with respect to eliminating
discrimination in the federal workplace and all other supervisory and
managerial responsibilities under equal employment opportunity law.
(5) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of benefits due appellant, including evidence that
the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at the Occupational Safety and Health
Administration, Washington, DC, facility copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. �1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency-not to the Equal Employment Opportunity Commission, Office of
Federal Operations-within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 this 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 this 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
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED AND EIGHTY
(180) CALENDAR DAYS of the date you filed your complaint with the agency,
or filed your appeal with the Commission. 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. 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 amende d, 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:
June 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ______________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The U.S. Department of Labor, Occupational Safety and Health
Administration, Washington, D.C., supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The U.S. Department of Labor, Occupational Safety and Health
Administration, Washington, D.C., has been found to have discriminated
against the individual when it rated the individual's performance
appraisal. The U.S. Department of Labor, Occupational Safety and Health
Administration, Washington, D.C., was ordered to revise the performance
appraisal and provide the individual with any monetary award he may have
been entitled. The U.S. Department of Labor, Occupational Safety and
Health Administration, Washington, D.C., was further ordered to provide
training to the responsible officials on the current state of the law
on employment discrimination.
The U.S. Department of Labor, Occupational Safety and Health
Administration, Washington, D.C., will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: ________________________
Posting Expires: _____________________
29 C.F.R. Part 1614
1 We note that appellant's contention that the agency's Request For
Reconsideration was untimely filed is without merit. The record indicates
that the agency received the previous decision on August 4, 1998. The
request was not postmarked, however, it was received by the Commission
on September 3, 1998, or 30 calendar days after the agency received the
previous decision. See 29 C.F.R. �1614.407(b).
2 The agency argued, among other things, that the previous decision
considered a briefing document that was outside of appellant's appraisal
period at issue. Assuming arguendo that this was true and interpreted
in a manner most favorable to the agency, this would still not alter
the Commission's decision in this case.