Nancy N. Wright, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 24, 2000
01a01536 (E.E.O.C. Feb. 24, 2000)

01a01536

02-24-2000

Nancy N. Wright, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Nancy N. Wright, )

Complainant, )

)

v. ) Appeal No. 01A01536

) Agency No. 99-3268

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

Upon review, we find that the complaint was properly dismissed pursuant

to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)), on the grounds that complainant

failed to contact an EEO Counselor in a timely manner.<1> The record

reveals that on March 1, 1999, complainant received a rating of �Fully

Successful� on her performance evaluation with regard to the critical

element of job interaction. Complainant initially contacted an EEO

Counselor on March 2, 1999, but the EEO Counselor advised her to contact a

different EEO Counselor because she was unable to handle another complaint

at that time. Complainant did not subsequently contact an EEO Counselor

to pursue her complaint until May 26, 1999. Complainant claims that

she contacted another EEO Counselor on March 3, 1999, but she has not

submitted evidence to support that position, and the record does not

support this claim. Complainant also states that her contact of another

EEO Counselor was delayed for several reasons. Complainant explained that

she was taking care of her mother after she broke her hip and that she

also had a Hawaiian vacation during the relevant period. The Commission

has consistently held that complainants must act with due diligence in the

pursuit of their claims or the doctrine of laches may be applied. O'Dell

v. Department of Health and Human Services, EEOC Request No. 05901130

(December 27, 1990). See Baldwin County Welcome Center v. Brown, 466

U.S. 147, 151 (1984) (per curiam) (�One who fails to act diligently cannot

invoke equitable principles to excuse lack of diligence�); Rys v. United

States Postal Service, 886 F. 2d 443, 446 (1st Cir. 1989) (�to find succor

in equity a Title VII plaintiff must have diligently pursued her claim�).

Complainant failed to submit adequate justification for an extension of

the 45-day limitation period. Accordingly, the final agency decision

dismissing the complaint is hereby AFFIRMED.<2>

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 24, 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,

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.

2In light of our affirmance of the final decision on this grounds,

we need not address the agency's alternative grounds for dismissal.