Don O.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120172911 (E.E.O.C. Nov. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Don O.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172911

Hearing No. 520-2009-00297X & 520-2010-00436X

Agency No. HS08CBP002637

DISMISSAL OF APPEAL

By Notice of Appeal postmarked September 1, 2017, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the December 15, 2014
final Agency decision (FAD) concerning his EEO complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.

The record indicates that an EEOC Administrative Judge issued a decision on October 31, 2014.
Thereafter the Agency issued a final order on December 15, 2014. Complainant filed the instant
appeal on September 1, 2017. In his appeal, Complainant asserts that neither he nor his attorney
received copies of the decisions. However, neither Complainant nor his attorney explains why
there were no inquiries as to the status of the complaint during that time period. 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.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120172911

2
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 her course of action could bar her claim. Complainant waited almost three years
without inquiring of the status of his case before the AJ and the Agency. Complainant has failed
to provide sufficient justification for extending or tolling the time limit.

Accordingly, Complainant's September 1, 2017 appeal is hereby dismissed. See 29 C.F.R. §
1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
0120172911

3
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 7, 2018
Date