01A20702_r
06-24-2002
Travis L. Atkinson, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Travis L. Atkinson v. Department of the Army
01A20702
June 24, 2002
.
Travis L. Atkinson,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20702
Agency No. BOAHFO0108B0270
DECISION
Upon review, the Commission finds that the agency's October 12, 2001
decision dismissing complainant's complaint was proper. In his complaint,
complainant alleged that was subjected to discrimination on the basis
of disability when:
Complainant's grade level was changed from WL-5503-11 to a WG-5503-11; and
Management told complainant that he was denied the WL position and pay
because he was hurt in a car accident.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO Counselor contact. The issue in the complaint occurred
on July 19, 1998. Complainant did not initiate EEO Counselor contact
until August 13, 2001, which is beyond the 45-day time limit.
On appeal, complainant argues that the time limit should be extended
because he was not aware of the time limits. The Commission finds that
complainant waited over three years before contacting an EEO Counselor.
The Commission has held that complainants must act with due diligence
in the pursuit of their claims or the doctrine of laches may be applied.
The doctrine of laches is an equitable remedy under which an individual's
failure to diligently pursue his actions could bar his claim. Since
complainant did not act with reasonable diligence in contacting the EEO
Counselor, the doctrine of laches requires dismissal of the complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
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
June 24, 2002
__________________
Date