EEOC Appeal 2020001696

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Patrick H., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001696
Agency No. 200H-0306-2019105577
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 19, 2019, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veteran Services
Representative at the Agency’s Regional Office in New York, New York.
On October 7, 2019, Complainant filed a formal complaint alleging that the Agency subjected him
to unlawful retaliation for engaging in protected EEO activity under Title VII of the Civil Rights
Act of 1964 when the Agency refused to engage in Alternate Dispute Resolution (ADR) and he
was removed from his position on October 26, 2003.
The Agency dismissed the ADR claim for failure to state a claim, and Complainant’s termination
claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant
appeal follows. In his appeal, Complainant basically argues the merits of his termination claims,
and asserts that Agency officials lied in other proceedings.
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.

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ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with a federal agency
based on race, color, religion, sex, national origin, age, disability, or genetic information related to
or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB).
29 C.F.R. § 1614.302(a)(1). A complainant may pursue a mixed case complaint with the Agency
or an appeal on the same matter with the MSPB, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R.
§ 1614.107(a)(4) allows for the dismissal of complaints where a Complainant has raised the same
matter in an appeal to the MSPB, as is the case here.
Here, the record establishes that prior to filing his EEO complaint, Complainant appealed his
removal to the MSPB (MSPB No. NY-0752-04-0054-I-1). Complainant raised discrimination and
reprisal claims before the MSPB. In a decision issued on April 13, 2004, the MSPB upheld the
removal. The record also indicates that Complainant later filed a civil action on the matter.
Therefore, the issue of Complainant’s removal was properly dismissed as already adjudicated by
the MSPB. 	To the extent that Complainant is now alleging that officials lied in the MSPB
proceedings, he should have raised such matters with the MSPB, not here. Moreover, the issue of
ADR is inextricably intertwined with the MSPB proceeding because the record is clear that the
Agency declined to engage in ADR because the matter was already before the MSPB for
adjudication. We further note that ADR is not mandatory.
As to the timeliness issue, EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in
the case of a personnel action, within forty-five (45) days of the effective date of the action. The
record discloses that the alleged discriminatory event occurred on October 26, 2003, but
Complainant did not initiate contact with an EEO Counselor until September 3, 2019, which is
nearly 16 years beyond the forty-five (45) day limitation period. The Commission has consistently
held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of
laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028
(November 18, 2004) (finding that the doctrine of laches applied when complainant waited over
two years from the date of the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27,
1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue
diligently his course of action could bar his claim. Complainant waited almost 16 years from the
date of the alleged discriminatory event before he contacted an EEO Counselor in October 2019.
Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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. 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.

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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
August 24, 2020
Date