Richard R. Blunk, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 12, 2005
01a53438 (E.E.O.C. Jul. 12, 2005)

01a53438

07-12-2005

Richard R. Blunk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Richard R. Blunk v. United States Postal Service

01A53438

July 12, 2005

.

Richard R. Blunk,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A53438

Agency No. 1J-631-0018-05

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds

of untimely EEO Counselor contact.

On February 2, 2005, complainant contacted an EEO Counselor and alleged

that he was subjected to discrimination on the basis of disability.

Informal efforts to resolve his concerns were unsuccessful and complainant

filed the instant formal complaint on March 4, 2005.

On March 17, 2005, the agency issued a final decision. Therein,

the agency found that complainant's complaint was comprised of the

following claim:

on July 30, 1999, you were issued a Notice of Removal for Violation of

Last Chance Agreement; and . . . other employees violated their last

chance agreements and they were not removed from service.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency determined that complainant's initial

EEO contact occurred approximately four and one-half years after the

alleged discriminatory event occurred.

On appeal, complainant argues that early in 2005, he first learned that

the agency could not demand that complainant enter into the agreement

identified in the instant complaint. Complainant further stated that

he had been �through a rough time with my depression, which is now

under control� and that his disability inhibited him from being �truly

cognizant of EEO processes.� Complainant further stated that during

a discussion with a friend, he was urged to contact the agency and his

union, whereupon he first learned that other parties who violated last

chance agreements were not similarly treated.

The record discloses that the alleged discriminatory event occurred on

July 30, 1999, but that complainant did not initiate contact with an EEO

Counselor until February 2, 2005, which is well beyond the forty-five

(45) day limitation period. The Commission finds that complainant has

presented no persuasive arguments or evidence warranting an extension

of the time limit for initiating EEO Counselor contact. Moreover,

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 four

years before he finally contacted an EEO Counselor in February 2005.

Accordingly, the agency's final decision dismissing complainant's

complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.

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

July 12, 2005

__________________

Date