0120081826
08-20-2009
Oliver L. Canaday, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Oliver L. Canaday,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081826
Agency No. 7K0J07017
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 27, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), sex
(male), and color (white) between September 1991 and March 1992, when:
(1) he was not given priority referral consideration for re-promotion
to GS-12;
(2) he was left in the Education Center Supervisor position (GS-12) as a
GS-11 from December 11, 1991 to March 7, 1992 (86 days) with no detail
or temporary promotion (there is no Form-52 or Form-50 for personnel
action for this period of time); and
(3) two of his requests for annual leave were disapproved (November 21
and November 25, 1991), causing him to lose leave.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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. The
Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In this case, complainant concedes that he was aware of the statutory
time limit of 45 days, and that he was aware approximately 15 years
ago that the personnel actions had occurred. He states however, that
that he did not know that the challenged agency actions were motivated
by discrimination until October 30, 2007 (over 15 years later), when he
created a "career snapshot"1. On appeal, complainant simply reiterates
the events that transpired, and states that he believes he was the victim
of discrimination. However, the Commission finds that complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
Further, the Commission has consistently held that a complainant must
act with due diligence in the pursuit of her claim or the doctrine
of laches may apply. See Becker v. United States Postal Serv., EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of
the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., 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. Complainant waited approximately 15 years from
the date of the alleged discriminatory events before he contacted an
EEO Counselor in 2007. Complainant has failed to provide sufficient
justification for extending or tolling the time limit.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______8/20/09____________
Date
1 In 2007, complainant created a document which is contained in the
record, which sets out the significant events in his career between 1978
and 1992. He asserts that looking at this document (which also includes
the demographic information of his supervisors over the years and the
demographic information of co-workers who were treated more favorably)
he realized he had been subjected to discrimination.
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0120081826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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