Maureen L. Frerichs, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 10, 2002
01A01003_r (E.E.O.C. Sep. 10, 2002)

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 Therein, the agency rescinded the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complainant had withdrawn claim 2, it would only address claim 1.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