0120090978
04-29-2009
Joann Daisy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joann Daisy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090978
Agency No. 4F900039308
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 12, 2008, dismissing her 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In an August 2008 Information for Pre-Complaint Counseling form and
subsequent formal EEO complaint dated October 29, 2008, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), disability (not specified), and reprisal
for prior protected EEO activity when she was terminated from her position
with the agency during her probationary period effective November 30,
1973.1 In its November 12, 2008 final decision, the agency dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a) for untimely EEO counselor
contact and for stating the same claim as an earlier complaint that had
already been decided. The instant appeal followed.
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.
The record discloses that the alleged discriminatory termination was
effective on November 30, 1973, but complainant did not initiate contact
with an EEO Counselor in the instant complaint until August 22, 2008,
which is beyond the forty-five (45) day limitation period. An examination
of the EEO counseling materials related to this complaint reveals that
complainant indicated that she sought counseling after she received
a July 30, 2008 letter from the U.S. Office of Personnel Management
indicating it had no jurisdiction to investigate her claims concerning
her 1973 termination from the agency.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO counselor
contact. 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 almost 35 years from the
date of the alleged discriminatory event before she contacted an EEO
Counselor in August 2008. Complainant has failed to provide sufficient
justification for extending or tolling the time limit.
In the alternative, the record also reveals that shortly after her
termination, complainant filed an EEO complaint with the agency (Agency
Complaint No. 188-73) on the termination, which was processed by the
agency, with a final decision on the merits being issued on October 2,
1974. This 1973-1974 complaint appears to have raised the same claim
as the instant one which also supports the agency's current dismissal
decision. See 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 29, 2009
__________________
Date
1 Complainant also raised an allegation in her complaint of
dissatisfaction with the EEO counseling she received and the agency's
REDRESS (mediation) program. In its dismissal decision, the agency
properly indicated that it would process these issues in accordance
with the separate procedures outlined in EEOC's Management Directive
(MD)-110 at 5-25 (November 9, 1999).
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0120090978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090978