01A01003_r
09-10-2002
Maureen L. Frerichs, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Maureen L. Frerichs v. Department of the Treasury
01A01003
September 10, 2002
.
Maureen L. Frerichs,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A01003
Agency No. 99-4292
DECISION
Upon review, the Commission finds that one of two claims raised in
the instant complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), for untimely EEO Counselor contact.
The record indicated that complainant sought EEO counseling on March
30, 1999. Informal efforts to resolve her concerns were unsuccessful.
On July 21, 1999, complainant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the basis of sex.
By letter dated August 31, 1999, the agency notified complainant that
her complaint may be dismissed for untimely EEO Counselor contact unless
she provided an acceptable explanation for her tardiness in contacting
the EEO Counselor.
Following complainant's response dated September 11, 1999, the agency
issued a final decision on October 12, 1999. Therein, the agency
determined that complainant's complaint was comprised of two claims,
that were identified in the following manner:
(1) the agency placed two males in the Reviewer position in the BMF
and IMF units in 1993; and
(2) failed to offer complainant a temporary assignment to the BMF/IMF
Reviewer position in March 1999, because of her sex.
The agency accepted claim 2 for investigation, but dismissed claim 1 on
the grounds of untimely EEO Counselor contact.
Thereafter, complainant timely filed an appeal with the Commission from
the agency's October 12, 1999 decision to dismiss one of two claims that
were raised in her complaint.
On February 9, 2000, complainant withdrew the accepted claim 2. On
February 11, 2000, the agency issued another final agency decision that
is the subject of the instant appeal. Therein, the agency rescinded the
final decision dated October 12, 1999. The agency noted that because
complainant had withdrawn claim 2, it would only address claim 1.
The agency dismissed claim 1 on the grounds of untimely EEO Counselor
contact. Complainant timely filed the instant appeal from the agency's
decision of February 11, 2000.
The record reflects that complainant explained that the reason for not
contacting an EEO Counselor earlier was that she did not become aware
of the discrimination until March 17, 1999. Complainant claimed that
during a conversation with a co-worker, she was told by the co-worker
that two males who were selected for BMF/IMF positions in 1993, have
remained in the positions for 3-year intervals without the use of
merit selection procedures, position descriptions, critical elements or
performance standards. Complainant stated that upon that discovery, she
realized that due to the individuals' positions, they had been afforded
training and instructing opportunities and access to various computer
programs that she was nor similarly afforded. Complainant further stated
that because she had been denied same opportunities since her arrival
in the unit in 1995, she was not as qualified for promotion to the IMF
Work Leader position.
The record discloses that the alleged discriminatory event in claim
1 occurred in 1993, but complainant did not initiate contact with an
EEO Counselor until March 30, 1999, which is beyond the forty-five (45)
day limitation period. While complainant states that she was unaware of
the alleged discrimination until March 1999, we find that she failed to
exhibit due diligence or prudent regard for her rights, in view of the
extended delay between 1993, when the identified males were placed in the
subject position, and March 1999, when she contacted an EEO Counselor.
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam) ("One who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence"); Rys v. U.S. Postal Service,
886 F.2d 443, 446 (1st Cir. 1989) ("to find succor in equity a Title
VII plaintiff must have diligently pursued her claim"). Accordingly,
the agency's final decision dismissing claim 1 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
September 10, 2002
__________________
Date