[Redacted], Milan S., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 24, 2021

Appeal No. 2021001314 (E.E.O.C. Feb. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milan S.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021001314 Agency No. DON-20-4523A-02094 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 29, 2020, 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. BACKGROUND During the period at issue, Complainant, a former Pipefitting Worker at the Puget Sound Naval Shipyard and Intermediate Maintenance Facility, applied for a Pipefitter position at the Agency’s Puget Sound Naval Shipyard in Bremerton, Washington. On June 30, 2020, Complainant initiated EEO Counselor contact. Complainant’s efforts to resolve his concerns were unsuccessful.2 On September 21, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race, national origin, and color when, in July 2016, he was not selected for the Pipefitter, WG-10, position at Puget Sound Naval Shipyard. 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 record reflects that the Agency’s brief indicated Complainant’s EEO contact was June 19, 2020, not June 30, 2020. Any date disparity does not affect our disposition of the instant appeal. 2021001314 2 Complainant claimed that on May 26, 2016, he applied for the Pipefitter position, and on July 27, 2016, he learned that he was not selected for the position. In its October 29, 2020 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on June 30, 2020, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. The instant appeal followed. ANALYSIS AND FINDINGS 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 Commission within forty-five days of the date of the matter alleged to be discriminatory or in the case of personnel action, within forty-five days of the effective date of the action. The record reflects that the alleged discriminatory event occurred on July 27, 2016, but that Complainant did not initiate EEO Counselor contact with an EEO Counselor until June 30, 2020, approximately four years beyond the 45-day limitation period. 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 Becker v. U.S. Postal Service, EEOC Appeal No. 01A45028 (Nov. 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 Services, EEOC Request No. 05901130 (Dec. 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 stated, in part, that health and work assignments prevented him from filing within 45 calendar days. Under these circumstances, however, we do not find adequate justification for excusing the significant delay in this case. Because Complainant did not act with reasonable diligence in contacting an EEO Counselor, the doctrine of laches requires dismissal. Finally, we note that on appeal, Complainant arguess that the Agency erroneously asserted that the subject position was for a librarian vacancy. We note, however, that the Agency merely referenced the facts of a prior Commission case, in a synopsis, in support of its dismissal. The Agency’s final decision to dismiss the formal complaint for untimely EEO Counselor contact is AFFIRMED. 2021001314 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021001314 4 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 February 24, 2021 Date