0120113389
12-08-2011
Kenneth M. Droze, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Kenneth M. Droze,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113389
Agency No. 116103102101
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 6, 2011, dismissing his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a former employee of the Agency’s U.S. Naval Air Facility in Atsugi,
Japan.
On April 12, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the bases of race (Caucasian),
national origin (USA), sex (male), color (White), disability, age (50),
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when he learned, in October 2010 while reading
an internet article, that incinerators at Atsugi effected people’s
health. Complainant alleged management knew he was sick, but did not
warn him of the possible health effects of the incinerators. Complainant
further alleged that management should have allowed him to leave Atsugi
earlier to prevent further deterioration of his health.1
While not specifically alleged in his complaint, an examination of the
relief requested in the complaint seems to suggest that Complainant is
also contesting his termination from the Agency in March 2001 from his
position of Computer Specialist.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §�
�1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal
followed.
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 this case, the record discloses that the latest an alleged
discriminatory event could have occurred was on March 26, 2001, when
Complainant’s employment with the Agency ended. Complainant did not
initiate contact with an EEO Counselor until November 19, 2010, which
is well beyond the forty-five (45) day limitation period.
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. 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 9 years after
his employment ended before he contacted an EEO Counselor in October 2010.
On appeal, Complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Complainant has failed to provide sufficient justification for
extending or tolling the time limit.
Additionally, the record shows that Complainant has already challenged
his March 2001 termination before the Merit Systems Protection Board
(MSPB). On June 4, 2001, the parties entered into a settlement agreement
concerning the matter. In that agreement, Complainant agreed not to
file further actions related to his termination and employment with the
agency. To the extent he is challenging that provision of the settlement
agreement, Complainant must raise the issue before the MSPB, not the
Commission.
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
December 8, 2011
__________________
Date
1 The EEO counselor specifically asked Complainant if he requested an
early departure and was denied. He responded that he did not.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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