01A32288_r
07-18-2003
Benton S. Coons, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Benton S. Coons v. Department of Transportation
01A32288
July 18, 2003
.
Benton S. Coons,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A32288
Agency No. 4-03-4040
DECISION
Complainant appealed to this Commission from the agency's February 5,
2003 dismissal of his employment discrimination complaint. Complainant
alleged that he was subjected to discrimination on the bases of race,
sex, and reprisal when he was not rehired, in 1998, as an Air Traffic
Control Specialist (ATCS) from the PATCO register for the Minneapolis
Air Traffic Control Center (ARTCC). The agency dismissed complainant's
complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact. The record reveals that: 1) complainant was previously
employed with the agency until 1981; 2) complainant applied to be rehired
on October 15, 1993; 3) the agency filled the positions in 1998 from
the PATCO register; and 4) no other selections were made from the PATCO
register for the Minneapolis facility since 1998. Complainant contacted
an EEO Counselor on January 21, 2003.
Complainant argues that he was not aware of the 45-day limitation
period. The agency does not submit evidence that EEO notices were
posted during complainant's previous employment with the agency or
that he was otherwise informed by the agency at the time he submitted
his application for rehire of the 45-day limitation period. Therefore,
the agency failed to show that complainant had actual or constructive
notice of the applicable 45-day limitation period. However, complainant
waited over four years before contacting an EEO Counselor. The Commission
has held that complainants must act with due diligence in the pursuit
of their claims or the doctrine of laches may be applied. The doctrine
of laches is an equitable remedy under which an individual's failure to
pursue his actions could bar his claim. Since complainant did not act
with reasonable diligence in contacting an EEO Counselor, the doctrine
of latches requires dismissal.
The agency's decision dismissing complainant's complaint is AFFIRMED.
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
July 18, 2003
__________________
Date