Chong Kim, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 16, 2003
05A31233 (E.E.O.C. Oct. 16, 2003)

05A31233

10-16-2003

Chong Kim, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Chong Kim v. Department of the Army

05A31233

October 16, 2003

.

Chong Kim,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Request No. 05A31233

Appeal No. 01A30699

Agency No. BPDQF0010380030

Hearing No. 170-A2-8145X

DENIAL OF REQUEST FOR RECONSIDERATION

Chong Kim (complainant) timely initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to reconsider the decision

in Chong Kim v. Department of the Army, EEOC Appeal No. 01A30699

(July 31, 2003). EEOC Regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In the underlying complaint, complainant alleged that the agency

discriminated against him in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Specifically, complainant contended that he

was discriminated against on the bases of his race (Asian American),

national origin (Korean) when:

he was disenrolled from the agency's War College, Class of 2001;

he suffered disparate treatment by members of the faculty, resulting

in the final grade of �failure� and imposition of harsher standards in

connection with his course requirements; and,

he suffered disparate treatment from the Academic Review Board (Board)

in its review of his appeal, from its failure to add a minority

representative to the Board, and from its exclusion of his written

response of reconsideration by the Board.

The agency's final decision (FAD) dated November 18, 2002, found no

discrimination and our prior appellate decision affirmed this finding.

In his request for reconsideration, complainant asserts that although

he was entitled to a civilian representative on the Board, he was not

afforded such representation which he contends is the result of ongoing

discriminatory treatment. Complainant also contends that he was denied

a fair fact-finding process during the investigation of his complaint.

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. In reaching

this conclusion, we note that complainant fails to demonstrate that

our prior decision involved a clearly erroneous interpretation of

material fact or law, or will have a substantial impact on the policies,

practices or operations of the Commission. Accordingly, the decision

in EEOC Appeal No. 01A30699 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

October 16, 2003

__________________

Date