05990869
11-08-1999
Estate of An-Ti Chai, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Estate of An-Ti Chai v. National Aeronautics and Space Administration
05990869
November 8, 1999
Estate of An-Ti Chai, )
Appellant, )
)
v. ) Request No. 05990869
) Appeal No. 01984452
Daniel S. Goldin, ) Agency No. NCN-98-LeRC-A016,
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On July 10, 1999, the Estate of An-Ti Chai (hereinafter referred to as
the appellant)<1> timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
Estate of An-Ti Chai v. National Aeronautics and Space Administration,
EEOC Appeal No. 01984452 (June 14, 1999). EEOC regulations provide that
the Commission may, in its discretion, reconsider any previous 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 a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, the
appellant's request is denied. However, the Commission exercises its
discretion and reconsiders the previous decision on its own motion
ISSUE PRESENTED
The issue presented is whether the agency correctly identified claim 2
and then dismissed it for failure to state a claim
BACKGROUND
The complaint of Dr. Chai (hereinafter referred to as the complainant)
alleged discrimination based on his race, national origin, and retaliation
regarding two non-promotion claims. The first claim involved a dual
ladder promotion package. The second claim concerned the changing of
a vacant position from a Senior Scientist position to a Science Manager
position. As to the second claim, the complaint stated:
The complainant believes that the motivation of this position change
... is to block all possible avenue of professional advancement for the
complainant. They know he is highly qualified for a senior scientist
position, and they know also that it would be difficult for them to
reject his application if such a position were posted.
The final agency decision accepted the first claim for investigation.
The agency decision defined the second claim as alleging that:
Management attempted to block all avenues of advancement to the position
of Senior Scientist for the Microgravity Fluids Branch by changing the
title of the position to Science Manager when the vacancy announcement
for the position was posted.
The agency decision dismissed the second claim for failure to state a
claim, finding that the appellant lacked standing to bring the claim
because he had not applied for the position, citing Owen v. Social
Security Administration, EEOC Request No. 05950865 (December 11, 1997).
On appeal, the complainant contended that claim 2 should be read as
follows:
Because of your race (Asian), [n]ational origin (Chinese), and in
retaliation for having filed previous discrimination complaints
[m]anagement completely and unequivocally ignored a request for an
evaluation document that would state the reasons why the Duties and
Responsibilities for the position was changed. As a consequence of this
action (non-action) it was an implied directive for the [a]ppellant not
to apply for the vacancy.
The previous decision accepted the redefinition of claim 2 but found
that the revised claim 2 did not state a claim because the appellant
did not claim that he had applied for the vacancy or did not show that
he was not allowed to apply for the vacancy.
The appellant requests reconsideration of the previous decision,
contending that the appeal concerned only the definition of claim 2,
not the dismissal. The appellant also contends that it has never had
the opportunity to address whether claim 2, as redefined, states a claim.
The agency responds that the appellant's request does not satisfy any
of the criteria for reconsideration. The agency also contends that the
previous decision should be affirmed.
ANALYSIS AND FINDINGS
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),
and it is the decision of the Commission to deny the appellant's request.
As to the appellant's request contentions, the Commission observes
that the complainant stated in his letter of May 27, 1998, that he was
appealing the dismissal of claim 2. The Commission also observes that
the appellant has had an opportunity in its request statement to present
its contentions that claim 2, as redefined, states a claim.
The Commission exercises its discretion and reconsiders the previous
decision on its own motion because the Commission finds, contrary to the
previous decision, that the final agency decision properly defined claim
2. The Commission also finds that claim 2, as properly defined, states a
non-promotion claim. The complaint alleges that for discriminatory and
retaliatory reasons, the agency changed a vacancy from Senior Scientist
to Science Manager in order to block the complainant from advancement,
i.e., to deny the appellant a promotional opportunity.
The Commission also finds that the agency's reliance on the Owen decision
is misplaced. In Owen, the complainant alleged that he was not promoted
to a GS 13 position during a ten year period. However, he did not
identify a single vacancy for which he had applied and was not selected.
The Commission found that under those circumstances, the complainant
did not have standing to raise a non-promotion claim. In contrast,
the complainant in the instant case identified a specific promotional
opportunity for which allegedly he would have been exceptionally well
qualified but for the agency's changing of the vacancy from a technical
position to a managerial position.
The Commission notes that the agency contended on appeal that the
complainant had not raised claim 2, as redefined, with the EEO counselor.
However, the agency concedes in its request statement that the complainant
discussed the changing of the Senior Scientist's position's title and
duties with the EEO counselor.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
appellant's request fails to meet the criteria of 29 C.F.R. �1614.407(c),
and the request is hereby DENIED. The Commission, however, exercises
its discretion and reconsiders the previous decision on its own motion.
The decision in EEOC Appeal No. 01984452 (June 14, 1999) is hereby
REVERSED. The final agency decision on claim 2 is hereby REVERSED.
Claim 2 is remanded to the agency for further processing in accordance
with this decision and the Order below. There is no further right of
administrative appeal from the decision of the Commission on this request
for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
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 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:
11/08/1999
_______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Dr. Chai died on July 2, 1998.