01A23136_r
08-06-2002
Herman Hoi Ming Mui, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Herman Hoi Ming Mui v. Department of the Interior
01A23136
August 6, 2002
.
Herman Hoi Ming Mui,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A23136
Agency No. WGS-02-003
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 26, 2002, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In his complaint, complainant claimed that he
was discriminated against on the basis of disability (cerebral palsy)
when, on September 25, 1991, he was not selected for the GS-7 Electronic
Engineer position (OPM Certificate C000008) in Rollo, Missouri.
The agency dismissed complainant's complaint for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency also
asserted that complainant did not exercise �due diligence� in pursuing
his complaint of discrimination in a timely manner.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the claimed discriminatory event occurred on
September 25, 1991, but complainant did not initiate contact with an EEO
Counselor until October 17, 2001,<1> which is well beyond the forty-five
(45) day limitation period. On appeal, complainant asserts that he was
not properly informed about the EEO process until September 14, 2001.
Although the agency does explain that complainant should have had a
reasonable suspicion of discrimination as early as September 1991,
the agency does not address complainant's claim of lack of actual or
constructive knowledge about the forty-five (45) day limitation period.
Nevertheless, we find that complainant's complaint is properly dismissed
pursuant to the doctrine of laches.
The Commission has held that individuals using the EEO process must act
with due diligence in the pursuit of their claims, or the doctrine of
laches may be applied. See Wright v. United States Postal Service, EEOC
Request No. 05990429 (September 10, 1999) (citing Walker v. Department of
the Treasury, EEOC Request No. 05960679 (December 12, 1997) and O'Dell
v. Department of Health and Human Services, EEOC Request No. 05901130
(December 27, 1990)). Under the doctrine of laches, an individual's
failure to diligently pursue his or her legal remedies can result in
the barring of the claims.
We find that the doctrine of laches is applicable in the instant case.
Complainant did not contact the EEO Office with an intent to pursue the
EEO process until October 17, 2001, over ten years after the alleged
discrimination occurred. Complainant has not presented adequate
supporting documentation to justify this delay. Complainant has failed
to diligently pursue his claims. Accordingly, we find that the agency's
dismissal of complainant's complaint was proper, and the agency's final
decision is AFFIRMED.
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 6, 2002
__________________
Date
1Although the EEO Counselor's Report indicates
that complainant initiated EEO Counselor contact on November 8, 2001,
in its final decision, the agency states that complainant first attempted
to contact the EEO Office by letter dated October 17, 2001.