01A11557
03-29-2001
Claire L. Burke, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Claire L. Burke v. Department of the Treasury
01A11557
March 29, 2001
.
Claire L. Burke,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11557
Agency No. 01-3013M
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact.
The record shows that by letter dated January 12, 2000, the agency
advised complainant that her failure to report to work on February 7,
2000, would result in her removal. By letter dated January 26, 2000,
complainant informed the agency that the January 12, 2000 letter left her
�no alternative but to apply for retirement effective January 31, 2000."
On January 26, 2000, complainant also sent a letter to the union informing
them that although she wanted to come back to work, she could not do
so pursuant to her physician's orders. By letter dated March 13, 2000,
complainant informed her Congressman that she had been discriminated by
the agency when it forced her to retire. On July 8, 2000, complainant
requested that the Commission provide her with assistance concerning
her forced retirement.
On August 6, 2000, complainant sought EEO counseling from the agency,
claiming that she had been discriminated against on the basis of
disability when in January 2000, the agency forced her to retire.
Complainant claimed that it never occurred to her to file a complaint
with the agency because she was no longer an employee of the agency.
Subsequently, complainant filed a formal complaint of discrimination.
The agency issued a final decision dismissing the complaint for untimely
EEO Counselor contact.
On appeal, complainant contends, inter alia, that as a seasonal unit
manager until 1997, she was �very aware of the EEO and its functions�.
She further contends, however, that she was unaware that she could
still seek EEO counseling once she was no longer an agency employee.
Complainant claims that she was forced to retire effective January
31, 2000. The record further shows that by letters dated January 26,
2000, she informed the agency and the union that she had been left no
choice but to retire from her position. In her March 13, 2000 letter to
a member of Congress, she stated that she had been discriminated against.
However, complainant did not initiate contact with an EEO Counselor until
August 6, 2000, which is beyond the forty-five (45) day limitation period
regarding the matter set forth in her complaint. Based on the record,
we find that complainant's argument that she was aware of her EEO rights
until 1997, but unaware that she could still seek EEO counseling after
she was allegedly forced to retire, is not persuasive. Accordingly,
the agency's final decision dismissing the complaint for untimely EEO
Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29, 2001
__________________
Date