Robert Vines, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01992784x (E.E.O.C. Feb. 3, 2000)

01992784x

02-03-2000

Robert Vines, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Robert Vines, )

Complainant, )

)

v. ) Appeal No. 01992784

) Agency No. 87-277

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

______________________________)

DECISION

On February 22, 1999, the complainant filed an appeal with this Commission

from a final agency decision (FAD) dated on or about December 23, 1988,

pertaining to his complaint of unlawful employment discrimination in

violation of � 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq. <1>

After reviewing the record in this case, the Commission finds that the

equitable doctrine of laches must be applied and the complainant's appeal

dismissed.

First, we note that the agency has, in compliance with the federal agency

records destruction policy, destroyed the case file on this appeal.

A copy of the policy was submitted by the agency and shows that the

authorized disposition of official discrimination complaint files is

four years after resolution of the case and compliance records when

seven years old.

Second, we note that the complainant has submitted various appeal

documents from his 1988 complaint of discrimination. These documents

show that the complainant's case was heard before an EEOC administrative

judge, who after finding discrimination, recommended that the agency

reinstate and reassign the complainant with full back pay and benefits.

Only one page of the agency's December 23, 1988 FAD is in the record and

shows that the agency adopted the administrative judge's recommended

decision. A January 31, 1989 agency letter to the complainant shows

that the complainant was receiving disability pension benefits based on

a permanent and total disability. Therefore, the agency was requesting

that the complainant provide medical documentation showing he was capable

of performing the duties of the position and offered to arrange for a

physical examination.

By letter dated June 27, 1989, the agency informed the complainant that

a medical appointment had been made for him. In a letter dated July 12,

1989, the physician informed the agency that based on his examination,

the complainant would not be able to handle employment at that time.

The complainant supplemented his appeal documents with an October 3, 1990

letter written by his attorney to the agency, requesting full relief and

a follow-up letter dated December 14, 1990, showing that the complainant

had not yet received a response from the agency. In the complainant's

original appeal submissions is an undated letter from the agency to

the complainant showing that it had met with him on April 1, 1991.

The letter informed the complainant that a back pay check had been sent

to him in August 1989 and that it had advised him in an August 18, 1989

letter that the agency considered the check complete relief since he

was unable to work at that time. Additionally, the agency stated that

it considered his negotiation of that check as his agreement with the

agency as to full relief and that the August 18, 1989 letter gave him

appeal rights to EEOC, which he did not avail himself of. We note that

a copy of the August 18, 1989 letter is not in the file.

The record shows no other correspondence between the complainant and

the agency, making the February 22, 1999 appeal to this Commission the

next action taken by the complainant in pursuing his rights. In his

appeal, he asks that the documents he submitted be reviewed and that

the decision be enforced. In the agency's response, it requests that

the complainant's appeal be barred by the doctrine of laches as it would

suffer undue prejudice due to this almost ten year delay.

The doctrine of laches is an equitable remedy under which an individual's

failure to diligently pursue their actions can bar their claims.

See O'Dell v. Department of Health and Human Services, EEOC Request

No. 05901130 (December 27, 1990). The Commission has long held that

complainants must act with due diligence in pursuit of their claims or

the doctrine of laches may be applied. See Walker v. Department of

the Treasury, EEOC Request No. 05960679 (December 12, 1997).

In the instant case, the Commission finds that the doctrine of laches is

applicable and the complainant's appeal must be dismissed. Almost eight

years have passed since the last communication between the complainant and

the agency regarding this case. The complainant proffers no explanation

for the extensive lapse in time prior to filing this appeal. Such an

extensive passage of time has resulted in the destruction of documents

rendering any further processing of the complainant's 1987 complaint

difficult, if not impossible.

Accordingly, we find that the complainant did not act with reasonable

diligence when he filed this appeal with the Commission nearly eight

years after his last contact with the agency and the doctrine of laches

requires the dismissal of his appeal.

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:

Feb. 3, 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

(if applicable), and the agency on:

_________________________

__________________________

1 On 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.