Tristan S.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Nov 8, 2018

0120171801 (E.E.O.C. Nov. 8, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tristan S.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120171801

Hearing No. 450-2011-00180X

Agency No. 11-06-002

DISMISSAL OF APPEAL

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from an EEOC Administrative Judge (AJ)’s January 14, 2015 decision which
effectively became the Agency’s final decision concerning his complaint of unlawful
employment discrimination. 29 C.F.R. § 1614.109(i). At the time of events giving rise to this
complaint, Complainant worked as a Special Agent-In-Charge, GS-15, of the Agency’s Dallas
Regional Office of the Office of Labor Racketeering and Fraud Investigations of the Office of
Inspector General. On October 1, 2010, Complainant filed his complaint, which was later
amended, alleging discrimination based on race and in reprisal for prior EEO activity when he
was subjected to a hostile work environment concerning his work performance and appraisals,
his supervisory authority, and his termination in March 2011.

EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the Commission must be filed
within 30 calendar days after complainants receive notice of the Agency’s decision.

The record indicates that on January 14, 2015, the AJ issued a decision without a hearing finding
no discrimination concerning the complaint. The Agency did not issue a final Agency order after
the AJ’s decision.

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.
0120171801

2
In her decision, the AJ explicitly informed Complainant of his right to file his appeal to the
Commission within 30 days of his receipt of the Agency’s final order. He was further informed
of his right to file his appeal after the conclusion of the Agency’s 40-day period for issuing a
final order if the Agency failed to issue a final order. The AJ’s decision specifically included a
Certificate of Service indicating that for timeliness purpose, it would be assumed that the
decision was received by the parties within five calendar days of mailing, which was January 14,
2015. Thus, the Agency’s 40-day period to issue a final order ended in early March 2015.

Complainant filed his appeal postmarked April 21, 2017, which was two years beyond the
timeframe for the appeal to be considered timely. The Commission has held that all
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 their actions could bar their claim. See Complainant v. U.S. Postal
Serv., EEOC Appeal No. 0120122190 (Aug. 31, 2012); Complainant v. Dep’t of Veterans
Affairs, EEOC Appeal No. 0120101233 (July 8, 2010). In the case at hand, we find that the
doctrine of laches is applicable, and Complainant did not act with due diligence in filing his
appeal two years after receiving the AJ’s decision. On appeal, Complainant fails to submit
adequate justification to invoke waiver or equitable tolling for filing the appeal.

Accordingly, the appeal is DISMISSED as untimely pursuant to 29 C.F.R. § 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.
0120171801

3
The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO
Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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

November 8, 2018
Date