Eugene M. Rebar, Complainant,v.Janice R. Lachance, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a02800 (E.E.O.C. Jul. 12, 2000)

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.