01a60899
04-13-2006
Eugene E. Nichols Jr, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene E. Nichols Jr,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60899
Agency No. 4G-700-0083-99
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 13, 2005, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed.
During the relevant period, complainant was employed as an Automotive
Mechanic at a Louisiana facility of the agency. Complainant asserts
that on April 20, 1999, he filed a formal EEO complaint alleging that
the agency subjected him to discrimination on the bases of disability
(on-the-job injury to shoulder, neck and back) and reprisal for prior
protected EEO activity when, on December 15, 1998, it changed his duty
hours. The agency, while acknowledging complainant may have received EEO
counseling on this matter, stated that it has no record of receiving this
formal complaint. Five years after allegedly filing his EEO complaint
and not hearing from the agency, in April 2004, complainant contacted
the agency EEO Office to inquire about the status of the complaint.
The agency questioned complainant about his reason for waiting to inquire
about the status of his complaint, to which complainant responded that
he thought the agency was processing the complaint. In a final decision
dated September 13, 2005, the agency dismissed complainant's complaint for
failure to state a claim and failure to pursue his claim with sufficient
diligence. Regarding the failure-to-pursue dismissal basis, the agency
noted that complainant had EEO activity prior to the instant complaint so
he should have been familiar with the agency's timeframes for processing.
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. Dep't 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 his course
of action could bar his claim. Complainant waited five years after he
filed his formal complaint to inquire about its status. In addition, it
is significant that complainant had some familiarity with the EEO process.
We find that complainant's failure to act more diligently is sufficient
to warrant dismissal of his request. Accordingly, the agency's final
decision dismissing the complaint is affirmed. Because we affirm the
agency's dismissal of complainant's complaint for failure to pursue with
due diligence, we find it unnecessary to address the agency's alternative
grounds of dismissal.
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
April 13, 2006
__________________
Date
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01A60899
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A60899