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.