Robert L. Valdez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2006
0120064128 (E.E.O.C. Nov. 17, 2006)

0120064128

11-17-2006

Robert L. Valdez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert L. Valdez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120064128

Agency No. 4G-752-0233-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 13, 2006, 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 the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to, for untimely EEO Counselor contact.

On April 19, 2006, complainant initiated contact with an agency EEO

Counselor and claimed that he was the victim of unlawful employment

discrimination on the bases of sex, age, and reprisal for prior protected

EEO activity. Informal efforts to resolve his concerns were unsuccessful.

On June 1, 2006, complainant filed the instant complaint.

On June 13, 2006, the agency issued a final decision. Therein, the

agency determined that complainant's complaint was comprised of four

claims, that were identified as follows:

(1) On March 14, 2006, complainant became aware after reviewing TACS

records that other supervisors worked more overtime than him, when

complainant was told in Fiscal Year 2002 not to work extended time and

other supervisors were brought in to work the overtime;

(2) From 2003 to 2005, he was not given the high pay raises and lump sum

awards as a female supervisor and he was required to have documentation

and a PS 3971 leave slip for personal time when the female supervisor

was not required to submit documentation;

(3) In FY 2005, he was harassed about his attendance and military leave

and threatened with removal as a supervisor;

(4) On February 13, 2006, he was placed on the evening tour which changed

his duty hours from 7:00-15:00 to 15:00 to 15:00-23:00.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).

The record discloses that the most recent alleged discriminatory event

alleged in the complaint occurred more than forty-five days prior

to complainant's initial EEO Counselor contact of April 19, 2006.

Specifically in regard to claim (1), the Commission determines that

despite complainant's assertion that he only developed a reasonable

suspicion in March 2006, the record supports a finding that complainant

had, or should have had, a reasonable suspicion of unlawful employment

discrimination at the time that the alleged discriminatory even occurred.

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 a claim. Complainant waited over

four years before he finally contacted an EEO Counselor with regard to

the matter identified in claim (1).

On appeal, complainant has presented no persuasive arguments or

evidence warranting an extension of the time limit for initiating EEO

Counselor contact. Accordingly, the agency's final decision dismissing

complainant's complaint on the grounds of untimely EEO Counselor contact

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 17, 2006

__________________

Date

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0120064128

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120064128

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