0120113533
08-16-2013
Birgit H. Clarke, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Birgit H. Clarke,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113533
Agency No. 2003-0549-2007101725
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's May 13, 2011 determination, finding that it was in compliance with the terms of the March 29, 2007 settlement agreement into which the parties entered. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
2b. [The Agency] will check personnel records by April 30, 2007 to show [Complainant] resigned.
By letters to the Agency dated February 22, 2011 and March 27, 2011, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that the Agency failed to correct her SF 52, Request for Personnel Action to reflect a resignation instead of a removal. Complainant explained that, although she became aware of the breach in 2009 when she accessed her personnel record, she delayed notifying the Agency because she feared that a breach allegation "would require additional information and the possibilities of more interference with [the Agency]." Complainant noted that having conversations with former co-workers encouraged her to overcome her fear.
In its May 13, 2011 determination, the Agency concluded that Complainant's breach allegation was untimely raised. Specifically, the Agency found that Complainant first learned of the breach in 2009, but failed to pursue her breach allegation until 2011. Moreover, even if Complainant's breach allegation was timely raised, the Agency found that it had cured the breach when, on April 28, 2011, it removed the comments in Part D of Complainant's SF 52 that referenced her removal.
EEOC regulation 29 C.F.R. � 1614.504(a) provides, in pertinent part, that if the complainant believes that the agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew or should have known of the alleged noncompliance. The time limits in 29 C.F.R. Part 1614 are subject to waiver, estoppel and equitable tolling.
29 C.F.R. � 1614.604(c).
Upon review, we find that Complainant's breach allegation was untimely raised. The settlement agreement informed Complainant that if she believes the Agency has failed to comply with the terms of the agreement, she must notify the Agency of the alleged noncompliance within 30 calendar days. Complainant, however, did not notify the Agency of the alleged breach until February 22, 2011, which is approximately two years after she became aware of the alleged breach.
The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004); O'Dell v. Dep't of Health & Human Services, EEOC Request No. 05901130 (Dec. 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claim.
In other cases, the Commission has found that a complainant's claim was untimely raised where the complainant did not timely notify the agency of the alleged breach. See Vargas v. Dep't of the Army, EEOC Appeal No. 0120121243 (Nov. 14, 2012) (breach claim untimely raised where complainant notified the agency two-and-a-half years after the alleged breach); Cook v. U.S. Postal Serv., EEOC Appeal No. 0120101989 (May 10, 2012) (breach claim untimely raised where complainant notified the agency almost two years after the alleged breach); Trovato v. Dep't of Veterans Affairs, EEOC Appeal No. 0120093666 (Dec. 18, 2009) (breach claim untimely raised where complainant notified the agency 18 months after the alleged breach); Giamellaro v. Dep't of Homeland Sec., EEOC Appeal No. 0120064131 (June 30, 2008) (breach claim untimely raised where complainant notified the agency more than a year after the alleged breach).
Here, Complainant waited approximately two years from the date she knew of the errors on her personnel record to notify the Agency of the alleged breach. Thus, we find that Complainant did not diligently pursue her claim. We find that Complainant's fear, as described above, is an insufficient justification for extending or tolling the time limit.
Accordingly, we AFFIRM the Agency's finding that Complainant's breach allegation was untimely raised.
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
__8/16/13________________
Date
1 On appeal, Complainant did not submit any information or documentation other than the notice of appeal form.
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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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