Herman H. Mui, Complainant,v.Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionAug 22, 2003
01a30241_r (E.E.O.C. Aug. 22, 2003)

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was withdrawn in November 1997; he was not selected for an Aerospace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.