0120093473
02-04-2010
Charles D. Thompson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120093473
Agency No. DEA200900347
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 14, 2009, dismissing his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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.
Complainant filed a formal EEO complaint alleging that he was subjected to
discrimination on the bases of race (Black), national origin (American),
sex (male), religion (Methodist), disability (arm injury), and age (over
40) when (1) since 1972, the agency denied him a light duty assignment,
(2) the agency failed to assist him with an appeal of what he feels
are inaccurate payments from the Office of Workers' Compensation
Programs (OWCP) since 1997, and (3) he was denied relief from the class
complaint of Henry W. Segar, et al. v. William F. Smith, Attorney General
(D.C. Civi1 Action No. 77-00081).
In its August 14 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. �� 1614.107(a)(1) & (2) for failure to
state a claim and untimely EEO contact, respectively. Specifically, the
agency stated that complainant (1) fails to state a claim as complainant
launched a collateral attack on the OWCP process and that the doctrine
of laches applies to the entire complaint because complainant delayed
implementing his rights. The instant appeal from complainant followed.
On appeal, complainant stated that the issues of his
complaint are matters that the agency should address because he was
its employee. The agency stated that complainant has filed the same
matters in various venues over the last 30+ years, noting that the Segar
civil action began in 1977.
We agree that (1) fails to state a claim under EEOC regulations.
After careful review of the record, we find that complainant's claim
challenges the process for another forum, i.e., OWCP, and constitutes
a collateral attack upon that process. Further, we agree that the
complaint in its entirety is untimely. 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. See O'Dell v. Dep't of Health and Human
Services, EEOC Request No. 05901130 (December 27, 1990). In this case,
even if complainant has filed on the same claims previously, we find that
the doctrine of laches is applicable, and that, because appellant waited
nearly 40 years to pursue his claim, he failed to act with due diligence.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Accordingly, we AFFIRM the agency dismissal of the instant
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2010
__________________
Date
2
0120093473
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093473