0120111531
06-09-2011
Theresa S. Vanaken, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Theresa S. Vanaken,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120111531
Agency No. 4E970003908
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 27, 2011, Complainant filed an
appeal with this Commission from the January 2, 2009 final Agency decision
(FAD) concerning her EEO complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq.
On her appeal form, Complainant states she received the Agency’s
decision on October 30, 2008. However, the decision is dated January
2, 2009. While not dispositive, the Agency submitted track and confirm
information showing the decision was delivered to Complainant and
her attorney in January 2009. The attorney is indicated as receiving
the decision on January 10, 2009. In any event, Complainant does not
deny receiving the final Agency decision. A review of the FAD reveals
that the Agency properly advised Complainant that she had thirty (30)
calendar days after receipt of its final decision to file her appeal with
the Commission. Therefore, in order to be considered timely, Complainant
had to file her appeal no later than February 9, 2009. 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. 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 her course of action could bar her claim. Complainant
waited more than 2 years from the date of her receipt of the final
Agency decision to file her appeal. Complainant has failed to provide
sufficient justification for extending or tolling the time limit.
Accordingly, Complainant's January 27, 2011 appeal is hereby DISMISSED.
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
June 9, 2011
__________________
Date
2
0120111531
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111531