01a53438
07-12-2005
Richard R. Blunk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard R. Blunk v. United States Postal Service
01A53438
July 12, 2005
.
Richard R. Blunk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53438
Agency No. 1J-631-0018-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds
of untimely EEO Counselor contact.
On February 2, 2005, complainant contacted an EEO Counselor and alleged
that he was subjected to discrimination on the basis of disability.
Informal efforts to resolve his concerns were unsuccessful and complainant
filed the instant formal complaint on March 4, 2005.
On March 17, 2005, the agency issued a final decision. Therein,
the agency found that complainant's complaint was comprised of the
following claim:
on July 30, 1999, you were issued a Notice of Removal for Violation of
Last Chance Agreement; and . . . other employees violated their last
chance agreements and they were not removed from service.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency determined that complainant's initial
EEO contact occurred approximately four and one-half years after the
alleged discriminatory event occurred.
On appeal, complainant argues that early in 2005, he first learned that
the agency could not demand that complainant enter into the agreement
identified in the instant complaint. Complainant further stated that
he had been �through a rough time with my depression, which is now
under control� and that his disability inhibited him from being �truly
cognizant of EEO processes.� Complainant further stated that during
a discussion with a friend, he was urged to contact the agency and his
union, whereupon he first learned that other parties who violated last
chance agreements were not similarly treated.
The record discloses that the alleged discriminatory event occurred on
July 30, 1999, but that complainant did not initiate contact with an EEO
Counselor until February 2, 2005, which is well beyond the forty-five
(45) day limitation period. The Commission finds that 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. Complainant waited over four
years before he finally contacted an EEO Counselor in February 2005.
Accordingly, the agency's final decision dismissing complainant's
complaint on the grounds of untimely EEO Counselor contact 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
July 12, 2005
__________________
Date