01a30241_r
08-22-2003
Herman H. Mui, Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
Herman H. Mui v. National Aeronautics and Space Administration
01A30241
August 22, 2003
.
Herman H. Mui,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A30241
Agency Nos. NCN-02-LaRC-A016, NCN-02-MSFC-A027,
NCN-02-KSC-A028 & NCN-02-ARC-A030
DECISION
Upon review, the Commission finds that the agency's decision dated
September 6, 2002, dismissing complainant's complaints due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency defined the complaints as alleging that complainant was
discriminated against based his disability (cerebral palsy) when: the
offer of an unpaid internship position at Langley Research Center (LaRC)
was withdrawn in November 1997; he was not selected for an Aerospace
Technologist (AST) position at LaRc in 1993; he was not selected for an
AST position at Kennedy Space Center (KSC) in November 1992; he was not
selected for an AST at Marshall Space Flight Center (MSFC) on January 18,
1991; and he was not selected for any AST position at Ames Research Center
(ARC) since May 7, 1990. Complainant has not challenged the agency's
framing of the complaints.
The record indicates that complainant contacted an EEO Counselor with
regard to his complaints from November 15 to December 31, 2001, which was
beyond the 45-day time limit set by the regulations. The EEO Counselor's
Report of Agency No. NCN-02-MSFC-A027 reflects that complainant admitted
during EEO counseling that he became aware of the EEO complaint processing
procedures in September 2001, when he met with EEO personnel concerning
another matter. Furthermore, the agency, in its decision, stated that
although complainant contended during EEO counseling of NCN-02-KSC-A028
that he did not know about the 45-day time limit for contacting an EEO
Counselor until November 5, 2001, when he received a letter from another
federal agency on an unrelated complaint, his waiting 4 to 12 years to
contact an EEO Counselor failed to show he acted with due diligence in
pursuit of his rights. On appeal, complainant does not contest the
agency's arguments nor does he present any adequate justification to
warrant an extension of the applicable time limit for contacting an
EEO Counselor.
Accordingly, the agency's decision is AFFIRMED.<1>
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
August 22, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency dismissed the complaints on the alternative grounds
of failure to state a claim, we need not discuss such in this decision
since the dismissal is affirmed due to untimely EEO Counselor contact.