0120182372
09-18-2018
Hayden R,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hayden R,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120182372
Agency No. 4F900007718
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated June 13, 2018, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk Machine, MPLSM, at the Agency's Westchester Post Office facility in Los Angeles, California. On May 16, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability2 (unspecified neck disability, unspecified blood disability) when:
1. On an unspecified date prior to Complainant's 1991 departure from the Agency, an unnamed supervisor arranged Complainant's workspace in a way that caused Complainant physical injury.
The Agency dismissed the claim for untimely filing of the Formal complaint, noting that the Formal complaint was filed six days late. In the alternative, the Agency also found that the claims should be dismissed for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Complainant has not provided a date for the incident at issue but the record discloses that Complainant has not worked at the Agency since May 12, 1991. As such the alleged incident must have occurred prior to this date, but Complainant did not initiate contact with an EEO Counselor until December 13, 2017, which is beyond the forty-five (45) day limitation period.
The Commission has held that complainants must act with due diligence in the pursuit of their claims or the doctrine of latches may be applied. The doctrine of latches is an equitable remedy under which an individual's failure to diligently pursue his actions could bar his claim. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The Commission has held the doctrine of latches to apply in cases where the delay in contacting an EEO Counselor was one and a half years. See Hearold v Department of Homeland Security, EEOC Appeal No. 0120100086 (March 25, 2010). In the instant case, given the time that has elapsed since the alleged discriminatory act, the Commission finds that the doctrine of latches applicable. On appeal, Complainant discusses his medical condition but has not shown that for the past 26 years he was medically incapacitated from filing a complaint. Nor has he otherwise presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
CONCLUSION
The Dismissal is AFFIRMED.
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).
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
September 18, 2018
__________________
Date
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.
2 The Agency noted that in his Formal Complaint, Complainant did not check any box identifying a basis of discrimination. The Agency further noted that, based on Complainant's reference to his neck being bent back impeding blood flow to his brain, the assumption was he was claiming disability as a basis of discrimination.
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