0120123204
12-03-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service Office of Chief Counsel), Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service Office of Chief Counsel),
Agency.
Appeal No. 0120123204
Agency No. IRS-12-0564-M
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 18, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked with the Agency until his termination effective November 7, 2007. He has subsequently applied for employment with the Agency but was not selected.
On January 12, 2012, Complainant contacted the EEO Counselor regarding his claim of discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to file a formal complaint. On May 18, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. He was subjected to harassment from 2006 to 2007;
2. He was removed from his former position effective November 7, 2007; and
3. Complainant was not selected for three positions for which he applied in 2012.
The Agency initially noted that Complainant's claim (2) involved a mixed case matter. Therefore, the Agency separated claim (2) for processing as Agency No. IRS-12-0564-M. The Agency processed claims (1) and (3) under Agency No. IRS-12-0331-F, as a non-mixed complaint.
The Agency dismissed claim (2) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that it contacted Complainant to explain the dates of the events. In response, Complainant stated that his termination letter dated November, 7, 2007, stated that he could raise the removal action through the grievance process. It also indicated that he could allege is claim of discrimination within the grievance itself. Complainant had contacted the Union to challenge the removal action. However, he stated that the Union refused to take the matter to an arbitrator. Therefore, Complainant asserted that he was denied the opportunity to allege discrimination. The Agency found that this was not sufficient to warrant an extension of the 45 time limit. As such, the Agency dismissed claim (2).
This appeal followed. On appeal, Complainant asserted that this was an ongoing harassment situation and the most recent event, namely the non-selections, were raised in a timely manner. Therefore, Complainant argued that the Agency's dismissal should be reversed. The Agency asked that the Commission affirm its dismissal decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Complainant asserted on appeal that the complaint alleged a claim of harassment. He argued that he alleged events that occurred within 45 calendar days of his EEO Counselor contact. As such, he claimed that his complaint was timely raised. The Commission disagrees. Upon review of the record, Complainant was removed from his prior position with the Agency in November 2007. Complainant has not shown aside from his bald assertion that the removal action was connected in any way to the non-selections. Therefore, we conclude that Complainant has not asserted a single claim of harassment but three separate claims of discrimination.
Looking at Complainant's claim of discrimination based on the removal action, we note that Notice of Removal provided Complainant with his appeal rights to the EEO Office and the 45 day time limit. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 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. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his legal rights could bar his claim. Complainant waited over 3 years from the date of the alleged discriminatory event before be contacted an EEO Counselor in January 2012. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of claim (2).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
December 3, 2014
__________________
Date
2
0120123204
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120123204