01A04930
02-28-2001
Hershel D. Goar, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Hershel D. Goar v. Department of Agriculture
01A04930
February 28, 2001
.
Hershel D. Goar,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A04930
Agency No. 980988
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
The record discloses that the alleged discriminatory event (non selection
for an agency position) occurred in 1991, but that complainant did not
initiate contact with an EEO Counselor until April 22, 1998, which is
beyond the forty-five (45) day limitation period.<1>
In his complaint, complainant stated that in 1998, he became aware that
another applicant filed a complaint of discrimination over the 1991
selection and had entered into a settlement with the agency. Complainant
believes the settlement constitutes evidence of discrimination,
and as a similarly situated applicant he should also get a financial
settlement. He claims that he timely contacted after he became aware
of the discrimination in April 1998.
On appeal, no persuasive arguments or evidence have been presented
to warrant an extension of the time limit for initiating EEO contact.
Moreover, the Commission notes that complainant waited approximately nine
years after the non-selection to contact an EEO Counselor. Complainant's
claim is therefore barred by the doctrine of laches. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record in this case does not contain a copy of the EEO Counselor's
Report. However, complainant states on appeal that on April 22,
1998, he initiated EEO Counselor contact regarding the matter raised
in the instant complaint. Moreover, in its final decision, the agency
acknowledged that complainant contacted an EEO Counselor in April 1998.
The Commission therefore determines that there is sufficient evidence
to review the appeal, despite the absence of the EEO Counselor's Report.