01984452
06-14-1999
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
01984452
June 14, 1999
Estate of An-Ti Chai, )
Appellant, )
)
v. ) Appeal No. 01984452
) Agency No. NCN-98-LeRC-A016
Daniel S. Goldin, )
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
___________________________________)
DECISION
The Commission finds that the agency's decision dated March 26, 1998
dismissing a portion of the complaint (allegation 2) for failing to
state a claim is proper pursuant to 29 C.F.R. �1614.107(a).
The agency defined allegation 2 as alleging that appellant was
discriminated against when "management attempted to block all avenues of
advancement to the position of Senior Scientist . . . by changing the
title of the position to Science Manager when the vacancy announcement
for the position was posted." On appeal appellant argues that allegation
2 should 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.
Accepting appellant's definition of allegation 2 we still find that
allegation 2 was properly dismissed for failing to state a claim.
Appellant has not shown that appellant was aggrieved in allegation 2.
Appellant does not claim in allegation 2 that appellant applied for a
vacancy and was not selected. Appellant has not shown that appellant
was not allowed to apply for the vacancy. Because of our disposition
we do not address the agency's argument on appeal that the complaint is
moot because of appellant's death on July 2, 1998.
The agency's decision dismissing a portion of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
June 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations