01A34238_r
09-30-2003
Kenneth W. Meadors, II, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Kenneth W. Meadors, II v. Department of the Army
01A34238
September 30, 2003
.
Kenneth W. Meadors, II,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34238
Agency No. ARMCCOY03MAY0038
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 2, 2003, 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.
On April 21, 2003, complainant initiated contact with an EEO
Counselor. Informal efforts to resolve his concerns were unsuccessful.
In his formal complaint, filed on May 19, 2003, complainant alleged that
he was subjected to discrimination on the basis of sex when on February 2,
2001, he was terminated during the probationary period of his employment
as a Police Officer, GS-0083-06.
The agency dismissed complainant's complaint on the grounds of
raising the same matters that were brought in a negotiated grievance
procedure that permits claims of discrimination, pursuant to 29 C.F.R. �
1614.107(a)(4). The agency also dismissed complainant's complaint on
the alternative grounds of untimely Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2).
The Commission itself has adopted a "reasonable suspicion" standard
(as opposed to a "supportive
facts" standard) to determine when the 45-day limitation period is
triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852
(February 11, 1999). Thus, the time limitation is not triggered until
a complainant reasonably suspects discrimination, but before all the
facts that support a charge of discrimination become apparent.
In his formal complaint, complainant alleged that on February 2,
2001, he was terminated from his position of Police Officer based on
allegations of sexual harassment of two of his co-workers. 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 O'Dell
v. Department 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. Complainant waited over two years before
he finally contacted an EEO Counselor. Complainant failed to present
adequate justification pursuant to 29 C.F.R. � 1614.105(a)(2), for
extending the limitation period beyond forty-five days. Accordingly,
the agency's final decision dismissing the complaint is hereby AFFIRMED.
Because we affirm the dismissal of the instant complaint for the reason
stated herein, we find it
unnecessary to address the agency's alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 30, 2003
__________________
Date