01a51992
03-31-2005
Teresa M. Bonk, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Teresa M. Bonk v. Department of Homeland Security
01A51992
March 31, 2005
.
Teresa M. Bonk,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A51992
Agency No. 04-0097
DISMISSAL OF APPEAL
Complainant filed an appeal with the Commission concerning her complaint
of unlawful employment discrimination. In her complaint, complainant
alleged that she was subjected to discrimination on the basis of
disability (major depression/anxiety disorder) when:
Complainant was harassed by supervisors and co-workers, was not provided
reasonable accommodation, and was forced to retire to avoid further
abusive treatment.<1>
On December 15, 2004, the agency issued a final decision finding
no discrimination and giving complainant appeal rights to the MSPB.
In mixed-case complaints, the agency must advise a complainant, at
the time it issues a final decision, of the right to appeal to the
Merit Systems Protection Board (not EEOC). See EEOC Regulation 29
C.F.R. �1614.302(d)(3). The record reveals that the agency notified
complainant of her right to appeal to the MSPB when it issued its
decision.
We note that on appeal complainant claims that the agency incorrectly
gave her appeal rights to the MSPB. We note that the present complaint
appears to fall within the jurisdiction of the MSPB. However,
the Commission will not make a determination regarding the MSPB's
jurisdiction over this case. There appears to be no bad faith by the
agency in determining that the claim at issue is appealable to the MSPB.
If the MSPB determines that it does not have jurisdiction over the matter,
then the agency shall recommence processing the matter as a non-mixed
case EEO complaint. See 29 C.F.R. � 1614.302(c)(2)(ii).
Accordingly, complainant's appeal is DISMISSED.
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
March 31, 2005
__________________
Date
1The agency originally dismissed this
complaint for untimely EEO Counselor contact. Complainant appealed this
dismissal to the Commission which reversed the agency's decision under
EEOC Appeal No. 01A23485 (March 4, 2003) and remanded the complaint for
further processing.