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