Kenneth M. Droze, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120113389 (E.E.O.C. Dec. 8, 2011)

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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