01a40553_r
10-15-2004
Maurice R. Carver, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Maurice R. Carver v. Department of Transportation
01A40553
October 15, 2004
.
Maurice R. Carver,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A40553
Agency No. 4-01-4117 R
Hearing No. 260-A3-9058X
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.
On July 24, 2001, complainant, a former agency employee, contacted an
EEO Counselor and alleged that he was subjected to discrimination on
the bases of sex (male) and age (63). Informal efforts to resolve
complainant's concerns were unsuccessful.
On September 7, 2001, complainant filed the instant formal complaint.
Therein, complainant raised the following two claims:
(1) complainant was not hired as an Air Traffic Control Specialist
(ATCS) at the Minneapolis Air Traffic Control Center (ARTCC) ; and
(2) he was not hired as a ATCS at the Chicago ARTCC or at an Indiana
terminal air traffic facility.
In a final agency decision (FAD) dated October 10, 2001, the agency
dismissed claim (1) for failure to state a claim and claim two (2)
on the grounds of untimely EEO Counselor contact.
On appeal, the Commission affirmed the dismissal of claim (2). However,
the Commission reversed the dismissal of claim (1) and remanded it to the
agency for further processing. Carver v. Department of Transportation,
EEOC Appeal No. 01A20790 (March 1, 2002); request for reconsideration
denied, EEOC Request No. 05A20610 (July 18, 2002).
After an investigation of claim (1), the agency forwarded the
investigative file to the complainant notifying him of his right to a
hearing or to have a decision by the agency. Complainant requested a
hearing before an Administrative Judge (AJ) of the EEOC.
On September 23, 2003, the AJ issued a decision, dismissing claim (1)
on the grounds of untimely EEO Counselor contact. Specifically, the
AJ determined that in October 1993, complainant sent an application for
an ATCS position to the agency; and that the agency sent complainant a
Notice in November 1993, that listed complainant's geographic preferences
as Indiana, Georgia, and Missouri for terminal positions; and Chicago,
Atlanta, and Kansas City for en route positions. The AJ found that
complainant never contacted the agency to inquire into the status of
his application or to contest the geographic preferences.
The AJ determined that Minneapolis made selections from a hiring register
in 1998; and that in June 2001, complainant learned from his son
(through a former colleague of complainant), that hiring had occurred
in Minneapolis and that former colleagues were filing EEO complaints
because younger males and females were being hired.<1>
The AJ determined that complainant exhibited a lack of due diligence in
not discovering that he was not selected for the Minneapolis positions
until June 2001, and that he did not contest his geographic preferences
listed in 1993.
On September 26, 2003, the agency issued a final order (which is the
subject of the instant appeal), implementing the AJ's dismissal.
On appeal, complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Moreover, the Commission has consistently held
that a complainant must act with due diligence in the pursuit of his
claim or the doctrine of laches may apply. See O'Dell v. Department of
Health and Human Services, EEOC Request No. 05901130 (December 27, 1990).
The doctrine of laches is an equitable remedy under which an individual's
failure to pursue diligently his course of action could bar his claim.
Because complainant did not act with reasonable diligence in contacting
an EEO Counselor, the doctrine of laches requires dismissal.
`Accordingly, the agency's final decision implementing the AJ's dismissal
of complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 15 ,2004
__________________
Date
1The Commission notes that in his formal
complaint, complainant stated that to his knowledge, the hiring in
Minneapolis occurred in 1996 and in 1998.