Encarnado S. Facundo, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 15, 2006
0120060503 (E.E.O.C. Nov. 15, 2006)

0120060503

11-15-2006

Encarnado S. Facundo, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Encarnado S. Facundo,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01200605031

Agency No. DON 05-61581-01602

DECISION

Complainant filed an appeal with this Commission from a final agency

decision, dated September 8, 2005, dismissing his formal complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the

appeal in accordance with 29 C.F.R. � 1614.405.

On May 9, 2005, complainant initiated contact with an agency the EEO

office regarding claims of discrimination. Informal efforts to resolve

complainant's concerns were unsuccessful. On or about August 16, 1985,

complainant filed the instant formal complaint.

On September 8, 2005, the agency issued a final decision. Therein,

the agency determined that complainant's complaint was comprised of the

following claim:

On February 1, 1985, management at Subic Bay Naval Base, Republic of the

Philippines, failed to authorize complainant's claim for a disability

retirement annuity.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency determined that complainant contacted

the EEO office on May 9, 2005, but retired from the shipyard in February

1, 1985. Moreover, the agency noted that the facility where complainant

had been employed was closed in November 1993.

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has 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. Department of the Navy,

EEOC Request No. 05970852 (February 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Here, the record indicates that complainant contacted the EEO office in

2005, regarding his separation in February 1985. Complainant contact is

approximately twenty years after the allegedly discriminatory event, well

beyond the time limitation. Moreover, 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 O'Dell v. Department of

Health and Human Services, EEOC Request No. 05901130 (December 27, 1990).

The doctrine of laches is an equitable remedy under which an individual's

failure to pursue diligently a course of action could bar his claim.

Complainant has failed to provide sufficient justification for extending

or tolling the time limit. Therefore, the agency's decision to dismiss

the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was proper.

Accordingly, the agency's decision to dismiss the complaint on the

grounds of untimely EEO Counselor contact is AFFIRMED.

Because we affirm the dismissal for the reason stated above, we will

not address alternative dismissal grounds.

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

November 15, 2006

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

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0120060503

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120060503