0120152342
05-13-2016
Arnoldo P.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arnoldo P.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120152342
Agency No. FS201500150
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 1, 2015, dismissing his complaint of unlawful employment discrimination alleging a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency. He was removed from his position of Computer Programmer in 1986.
On January 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when: (1) on May 23, 1986, he was removed from his position as a GS-11, Computer programmer; and (2) on or after October 31, 2014, the Agency failed to respond to his electronic mail communication.
Information in the record indicates that Complainant appealed his removal to the Merit Systems Protection Board (MSPB), which upheld his removal. In Petition No. 03870003 (February 22, 1987), we concurred with the MSPB's decision, finding no discrimination. According to the Agency, Complainant attempted to appeal to the MSPB on the same matter in 2008, but the MSPB dismissed the matter under the doctrine of res judicata. As to the electronic mail communication, it concerned his retirement pay and his start date.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that claim 1 was barred by res judicata and that Complainant was not aggrieved with respect to claim 2. The Agency noted that retirement pay and dates of service are computed by the Office of Personnel Management.
The instant appeal followed. In his appeal, Complainant states that, "MSPB still has not resolved my start date."
ANALYSIS AND FINDINGS
Claim 1
Initially, we agree with the Agency that the claim is barred by the doctrine of res judicata. Complainant's removal was addressed by the MSPB, and we concurred with their findings regarding his disability discrimination claims. Complainant cannot again raise the same claims.
To the extent Complainant argues that he is now raising a new claim of disability discrimination regarding his removal, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. It has been almost 30 years from the date of the alleged discriminatory event. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Claim 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Complainant has failed to allege how he was harmed by the Agency's failure to respond to his electronic mail. He admits that the matter of his start date is still before the MSPB. As such we find Complainant has failed to state a claim regarding this matter.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 13, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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