01A32237_r
09-22-2003
Charlie C. Rosalin, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Charlie C. Rosalin v. Department of the Navy
01A32237
September 22, 2003
.
Charlie C. Rosalin,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A32237
Agency No. 0200251027
DECISION
Complainant initiated contact with an EEO Counselor on May 7, 2002. In a
formal EEO complaint dated August 19, 2002, complainant claimed that he
had been discriminated against on the bases of his disability (bilateral
epicondylitis, tendinitis and carpal tunnel on elbows, hands and thumbs),
race (Chamorro), color (brown), and national origin (Guam/Guamanian).
The agency defined the alleged incident as being that on March 29, 1997,
complainant's term appointment as an Insulator, WG-4203-10 expired.
In its decision dated January 23, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(2), on the grounds that complainant
failed to contact an EEO Counselor in a timely manner. The agency
determined that complainant's EEO contact was approximately five years
after the alleged discrimination, and therefore after the expiration of
the 45-day limitation period for contacting an EEO Counselor.
On appeal, complainant contends that he was unaware of the time period
for contacting an EEO Counselor until he was informed by the Commission
in a letter dated April 10, 2002. Complainant claims that he did not
learn of his right to file an EEO complaint until the latter part of
September 2001. Complainant argues that although he received sexual
harassment training, he was not taught during such training how to file
an EEO complaint.
In response, the agency asserts that at the time of complainant's
temporary appointment on August 10, 1992, all new employees to the
Shipyard were provided with an EEO Puget Sound Naval Shipyard booklet.
The agency states that complainant attended training in prevention of
sexual harassment on August 12, 1992, December 13, 1993, March 10, 1995,
and August 16, 1996, and that all attendees received handouts describing
the discrimination process and the 45-day limitation period for contacting
an EEO Counselor. According to the agency, all EEO instructions are
posted on official bulletin boards in complainant's shop and there are
bulletin boards located in employee common areas that are accessible to
all Shipyard employees.
Initially, we observe that the agency's definition of the issues in the
complaint is incomplete. A reading of the formal complaint reveals
that complainant claimed that he had been discriminated against upon
the aforementioned bases when his term appointment was not converted
to a career or career-conditional appointment; when he was not granted
lifetime reinstatement eligibility to his former Insulator position; when
he was required to sign a statement agreeing to the terms and conditions
of his term appointment; when he was terminated from his position; when
he was not restored to his Insulator position after he recovered from
an occupational injury; and when he was not offered a reassignment to
another position as a reasonable accommodation.
Complainant argues that he was not aware of the 45-day limitation period
for contacting an EEO Counselor. The record shows that the agency has
not provided sufficient evidence to establish that complainant had
actual or constructive notice of the 45-day time limit. The agency
has failed to provide independent evidence of the posting of the EEO
posters in question, i.e., affidavit by an appropriate agency official.
However, the alleged incidents occurred in 1997 and complainant did not
initiate contact with an EEO Counselor until May 7, 2002, approximately
five years later. 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. Under the doctrine of laches, 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 laches requires dismissal. Accordingly, the agency's
decision to dismiss complainant's complaint on the grounds of untimely
EEO Counselor contact 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
September 22, 2003
__________________
Date