0120121236
05-02-2012
Eddieberto Hernandez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Eddieberto Hernandez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121236
Hearing No. 360-2004-00165X
Agency No. ARCORPUS03JUN0052
DISMISSAL OF APPEAL
By Notice of Appeal dated April 4, 2011, Complainant filed an appeal with this Commission concerning his EEO 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.
Complainant filed an EEO complaint dated August 18, 2003, alleging that he was subjected to discrimination based on his race, sex, age, and in reprisal for prior protected EEO activity when he was not selected for a GS-8801-05 Aircraft Overhaul Trades Helper position and not given an explanation for his non-selection.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing on his complaint. On August 23, 2004, the AJ issued an Order Dismissing Request for Hearing and Returning the Case to the Agency for a Final Agency Decision.
The record contains a copy of the Agency's final decision dated December 10, 2004, finding Complainant was not subjected to discrimination as alleged. The final decision contains a certificate of service signed by the Agency's EEO Assistant stating that the decision was mailed to both Complainant and his non-attorney representative on December 10, 2004.
Complainant filed the present appeal dated April 4, 2011, claiming that the Agency never issued a final decision in accordance with the AJ's August 23, 2004 Order. On appeal, Complainant's attorney requests the Agency be ordered to comply with the AJ's August 23, 2004 Order.
In response to Complainant's appeal, the Agency notes that it did issue a final decision in compliance with the AJ's Order. Moreover, the Agency requests the Commission dismiss Complainant's appeal for being filed late.
Appeals must be filed within 30 days of receipt of an agency's final decision. 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 Becker v. U.S. Postal Service, 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. Dep't 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 his course of action could bar his claim. In the present case, Complainant waited more than six years from the date the Agency issued its final decision until he appealed. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Accordingly, Complainant's April 4, 2011 appeal is 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
May 2, 2012
__________________
Date
2
01-2012-1236
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121236