01A34048_r
09-29-2003
Robert W. Yanda, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Robert W. Yanda v. Department of Transportation
01A34048
September 29, 2003
.
Robert W. Yanda,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A34048
Agency No. 4-03-4092
DECISION
Complainant appealed to this Commission from the agency's May 29, 2003
dismissal of his employment discrimination complaint. Complainant
alleged that he was subjected to discrimination on the basis of age
(date of birth: October 11, 1944) when he was not rehired, as an Air
Traffic Control Specialist (ATCS) from the PATCO register for the
Minneapolis Air Traffic Control Center (ARTCC) or the Chicago ARTCC
since 1993. The agency dismissed complainant's complaint, pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The record
reveals that: 1) complainant was previously employed with the agency
until 1981; 2) complainant applied to be rehired on September 13, 1993;
3) the agency filled the positions in 1998 from the PATCO register;
4) complainant indicated Chicago ARTCC as his geographic preference
in 1993 and then changed his geographic preference to the Minneapolis
ARTCC in August 1998; and 5) no other selections were made from the
PATCO register for the Minneapolis or Chicago facilities since 1998.
Complainant contacted an EEO Counselor on May 2, 2003.
Complainant argues that he was not aware of the 45-day limitation period.
The agency does not submit evidence that EEO notices were posted during
complainant's previous employment with the agency or that he was otherwise
informed by the agency at the time he submitted his application for rehire
of the 45-day limitation period. Therefore, the agency failed to show
that complainant had actual or constructive notice of the applicable
45-day limitation period. However, complainant waited over nine years
after he submitted his application and more than four years after the
last ATCS selection from the PATCO register was made before contacting an
EEO Counselor. The Commission has held that complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. The doctrine of laches is an equitable remedy under
which an individual's failure to pursue his actions could bar his claim.
Since complainant did not act with reasonable diligence in contacting
an EEO Counselor, the doctrine of latches requires dismissal.<1>
The agency's decision dismissing complainant's complaint 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
September 29, 2003
__________________
Date
1Since we are affirming the agency's dismissal
of the complaint on the grounds of untimely counselor contact, we will
not address the agency's alternative grounds for dismissal, i.e., that
complainant raised the same claim that has been decided by the Commission.