01a02800
07-12-2000
Eugene M. Rebar, Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Eugene M. Rebar v. Office of Personnel Management
01A02800
July 12, 2000
Eugene M. Rebar, )
Complainant, )
)
v. ) Appeal No. 01A02800
) Agency No. 8925
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
agency action, dated January 5, 2000, which the agency issued pursuant
to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's
appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the Commission finds that the doctrine
of laches is applicable to the facts of this case. The doctrine of laches
is an equitable defense under which an individual's failure to diligently
pursue their actions can bar their claims from further consideration.
Sapp v. USPS, EEOC Request No. 05950666 (May 31, 1996) (three-year delay);
Davis. v. Department of the Navy, EEOC Request No. 05910476 (August 15,
1991) (four-year delay).
The record reflects that complainant filed a formal complaint on May
10, 1989. The record further reflects that the complainant requested a
final agency decision on his formal EEO complaint, by letter dated March
7, 1991. By letter dated March 28, 1991, the complainant informed the
EEO Officer that on April 8, 1991, with or without a final decision,
he intended to file a civil action in the United States District Court.
The complainant concluded that �[t]here is no need for personal contact
to further discuss this matter, or to complete your analysis, findings,
and recommendations.� The complainant filed a civil action on January
23, 1992, which was dismissed without prejudice on June 24, 1993, because
the complainant did not pay the filing fee. The complainant thereafter
wrote to the agency on February 26, 1999, asking for a completion date
for the agency's final determination on his complaint.
On appeal, the complainant contends that if the agency believed that he
had filed a civil action, it should have dismissed his complaint at that
time. The complainant also contends that his April 8, 1991 letter was
an attempt to�wake somebody up� some thirty days after the EEO Officer
should have submitted findings, recommendations, and other supporting
analysis for the formulation of a final decision. The complainant
contends that this statement should have been �moot� and the agency should
have continued to follow the regulations. The complainant also submits
a copy of a July 7, 1998 letter to the agency wherein he indicated that
seven years was a long time to be waiting for a decision and noted that
if the processing of the complaint was terminated, he should have been
notified.
Here, the complainant waited five years to contact the agency after
the dismissal of his civil action. While arguably the dismissal of the
civil action, without prejudice, could have justified the reactivation
of the complainant's administrative complaint, the record reflects that
the complainant did nothing for five years. The complainant's extensive
inaction warrants the application of the doctrine of laches, particularly
where the complainant has not provided any persuasive justification for
the delay. The Commission finds nothing in the complainant's April 8,
1991 letter to indicate that he wanted the agency to take any further
action on his complaint. To the contrary, he specifically instructed
the EEO Officer to take no further action.
CONCLUSION
For the above stated reason, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's dismissal of the
complainant's May 10, 1989 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 12, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant and the agency on:
_________________ ___________________________
DATE Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.