0120064128
11-17-2006
Robert L. Valdez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064128
Agency No. 4G-752-0233-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 13, 2006, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to, for untimely EEO Counselor contact.
On April 19, 2006, complainant initiated contact with an agency EEO
Counselor and claimed that he was the victim of unlawful employment
discrimination on the bases of sex, age, and reprisal for prior protected
EEO activity. Informal efforts to resolve his concerns were unsuccessful.
On June 1, 2006, complainant filed the instant complaint.
On June 13, 2006, the agency issued a final decision. Therein, the
agency determined that complainant's complaint was comprised of four
claims, that were identified as follows:
(1) On March 14, 2006, complainant became aware after reviewing TACS
records that other supervisors worked more overtime than him, when
complainant was told in Fiscal Year 2002 not to work extended time and
other supervisors were brought in to work the overtime;
(2) From 2003 to 2005, he was not given the high pay raises and lump sum
awards as a female supervisor and he was required to have documentation
and a PS 3971 leave slip for personal time when the female supervisor
was not required to submit documentation;
(3) In FY 2005, he was harassed about his attendance and military leave
and threatened with removal as a supervisor;
(4) On February 13, 2006, he was placed on the evening tour which changed
his duty hours from 7:00-15:00 to 15:00 to 15:00-23:00.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
The record discloses that the most recent alleged discriminatory event
alleged in the complaint occurred more than forty-five days prior
to complainant's initial EEO Counselor contact of April 19, 2006.
Specifically in regard to claim (1), the Commission determines that
despite complainant's assertion that he only developed a reasonable
suspicion in March 2006, the record supports a finding that complainant
had, or should have had, a reasonable suspicion of unlawful employment
discrimination at the time that the alleged discriminatory even occurred.
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 a course of action could bar a claim. Complainant waited over
four years before he finally contacted an EEO Counselor with regard to
the matter identified in claim (1).
On appeal, complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact. 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 (M0900)
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
November 17, 2006
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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