Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity CommissionJul 11, 2014
0120141224 (E.E.O.C. Jul. 11, 2014)

0120141224

07-11-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Eastern Area),

Agency.

Appeal No. 0120141224

Agency No. 4C450016413

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated January 7, 2014, dismissing his complaint of unlawful employment discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's facility in Columbus, Ohio. Complainant retired on November 29, 2013.

On November 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination when, on or about May 16, 2002, an idea he submitted to management concerning how to handle returns was rejected, but subsequently implemented without compensating him. Complainant did not provide a basis for the alleged discrimination to the EEO counselor and did not check any box related to a basis for discrimination on his formal complaint form.

The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failing to state a claim, as well as for failure to contact an EEO counselor in a timely manner. The instant appeal followed. In his appeal, Complainant states that the matter could have been retaliation for an earlier EEO complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.

In the instant case, Complainant's suggestion was rejected in 2002. 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 his course of action could bar his claim. Complainant waited more than eleven years from the date of the alleged discriminatory event before he contacted an EEO Counselor in September 2013. Complainant has failed to provide sufficient justification for extending or tolling the time limit.

Because we find that Complainant failed to contact an EEO counselor in a timely manner, we decline to address the issue of whether he stated a claim when he failed to identify a basis for the alleged discrimination during counseling or on his complaint form.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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

July 11, 2014

__________________

Date

2

0120141224

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141224