0520120303
06-14-2012
David D. Diamond, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
David D. Diamond,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120303
Appeal No. 0120114111
Agency No. 116832202458
DENIAL
Complainant timely requested reconsideration of the decision in David D. Diamond v. Department of the Navy, EEOC Appeal No. 0120114111 (February 9, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: on May 5, 2011, Complainant contacted an EEO counselor concerning, among other things, his claim that he was discriminated against based on his disability and sex when Agency Official 1 and Agency Official 2 chose not to select him, an applicant for federal employment, for a term Personnel Psychologist position in August 2006. The Agency, finding that Complainant's EEO counselor contact was well beyond the 45-day time limitation period, dismissed the above claim along with other matters not at issue here. The previous decision affirmed the Agency's dismissal. According to the previous decision, Complainant failed to provide sufficient justification for extending the time limitation period for contacting an EEO counselor over four years.1
In his request for reconsideration, Complainant argues that the previous decision erred because although he was aware that he had not been selected in 2006, he did not reasonable suspect discrimination until March 24, 2011 when he spoke to a former co-worker about being a witness in the co-worker's EEO complaint. As indicated in the previous decision, the co-worker revealed to Complainant that Complainant's application was never reviewed by Agency Official 1 and Agency Official 2. Furthermore, Complainant maintains that his preference eligible rights were violated and therefore, the previous decision will have a substantial impact on the policies, practices, and operations of the Agency.
At the outset, we note that enforcement of veteran's preference eligibility rules are outside of the Commission's purview.
The Commission, long ago, adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant indicated on appeal that he was aware, in 2006, that favoritism was occurring in the workplace. 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. Complainant waited more than 4 years from the date of the alleged discriminatory event before he contacted an EEO Counselor in May 2011. Like the previous decision, we find that Complainant has failed to provide a sufficient justification for extending or tolling the time limit here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120114111 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
_6/14/12_________________
Date
1 In reaching this determination, the previous decision noted that Complainant indicated that he was aware that favoritism occurred in the workplace when he had been employed in the workplace, as a contractor, and worked with Agency Officials 1 and 2.
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0520120303
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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