01985507
02-04-2000
Gerald M. Richer, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gerald M. Richer v. Department of the Navy
01985507
February 4, 2000
Gerald M. Richer, )
Complainant, )
)
v. ) Appeal No. 01985507
) Agency No. 98-60530-004
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated May 11, 1998, which the agency issued pursuant to 29
C.F.R. �1614.107.<1> The Commission accepts the complainant's appeal
in accordance with EEOC Order No. 960, as amended.
The final agency decision dismissed the complaint's March 26, 1998
complaint for untimely EEO counselor contact. According to the
decision, the complaint alleged that based on his physical disability,
his supervisor devalued his work contributions from approximately October
1982 until his separation in June 1988. The record indicates that the
complaint first contacted an EEO counselor about his allegations on
October 17, 1997.
After a review of the record, including the complaint's appeal
submissions, the Commission finds that the complainant should have had
knowledge of the time limitation for EEO counselor contact. The complaint
served as the President of the facility's EEO Committee. He also admits
to having had some knowledge of the EEO process. However, even if the
complaint did not know of the time limitation for EEO counselor contact,
the Commission finds that the complaint's complaint should be barred
from further consideration under the doctrine of laches.
Laches is an equitable doctrine under which an individual's failure
to diligently pursue their actions can bar their claims from further
consideration. See Walker v. Department of the Treasury, EEOC Request
No. 05960679 (December 12, 1997) (23 year delay in seeking counseling);
Sapp v. United States Postal Service, EEOC Request No. 05950666 (May
31, 1996) (3 year delay in re-contacting an EEO counselor); Harris
v. United States Postal Service, EEOC Request No 05950268 (September 8,
1995) (12 year delay in filing a request for reconsideration); Martin
v. Department of Agriculture, EEOC Request No. 05940626 (November 14,
1994) (5 � year delay in EEO counselor contact); Welton v. Department
of Agriculture, EEOC Request No. 05940358 (September 16, 1994) (6 year
delay in EEO counselor contact).
The Commission finds that the complaint did not exercise due diligence
in the pursuit of his claim. The complaint waited over nine years after
he resigned from agency employment in 1988 to raise his claim with an
EEO counselor. On appeal, the complaint describes several reasons why
he did not contact a counselor at the time of the alleged discrimination,
including his lack of confidence in the facility's EEO Office. However,
none of the complaint's explanations justify the nine-year delay.
Therefore, the Commission finds that the complaint's complaint should
be barred from further consideration under the doctrine of laches.
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the complainant's March 26, 1998 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 4, 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, complainant's representative
(if applicable), and the agency on:
_________________ ___________________________
DATE
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.