01A31952_r
09-11-2003
Denise Clampitt-Hyers, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Denise Clampitt-Hyers v. Department of the Treasury
01A31952
September 11, 2003
.
Denise Clampitt-Hyers,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A31952
Agency No. 02-2318T
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 31, 2002, dismissing her complaint of unlawful
employment discrimination for untimely contact with an EEO counselor
pursuant to 29 C.F.R. � 1614.107(a)(2), and for failure to state a claim
29 C.F.R. � 1614.107(a)(1). In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Caucasian)
and sex (female) when her former supervisor:
Denied complainant details, high visibility assignments and training on
six occasions between August 2000 and July 2001.
Took actions that impeded complainant's ability to perform the duties
of her position on six occasions between May and October 2001.
Excluded complainant from meetings important to the performance of her
duties on October 22, 2001, February 8, 2002, and March 28, 2002.
Accused complainant and her husband of having a personal relationship
with a government contractor between October 2000 and January 2001.
Treated complainant rudely and ignored her in front of her colleagues
on several occasions between August and September 2001.
Excluded other employees and contractors from attending meetings conducted
or held by complainant on October 16, 2001.
The agency dismissed that portion of allegation (3) pertaining to the
March 28, 2002 incident for failure to state a claim. It dismissed the
rest of allegation (3) as well as the other allegations for untimely
counselor contact.
With regard to the incident in allegation (3) that took place on March 28,
2002, the Commission finds that complainant was not aggrieved by being
excluded from the meeting because she has not shown that she suffered a
harm or loss to a term, benefit, condition, or privilege of her employment
for which a remedy could be awarded.
As to the rest of allegation (3) and the remaining allegations,
an aggrieved individual must contact an EEO counselor within 45 days
of the alleged discriminatory occurrence. 29 C.F.R. � 1614.105(a)(1).
This time limit may be extended, however, if the individual was unaware
of the time limits, if he did not know or could not reasonably have
known that discrimination had occurred, if he was prevented from timely
contacting a counselor by circumstances beyond his control, or for any
other reasons considered sufficient by the Commission. 29 C.F.R. �
1614.105(a)(2). In addition, the 45-day time limit is subject to waiver,
estoppel, and equitable tolling. 29 C.F.R. � 1614.604(c).
The record discloses that the most recent alleged discriminatory event
occurred on February 8, 2002, but complainant did not initiate contact
with an EEO Counselor until April 22, 2002, which is beyond the forty-five
day limitation period. On appeal, complainant presented an affidavit in
which she stated that she did not become aware of the EEO process until
after March 28, 2002. In its response to complainant's appeal, however,
the agency presented the declaration of the Senior EEO Specialist whose
area of responsibility included the facility where complainant worked.
The Senior EEO Specialist stated that, during the relevant time frame, an
EEO poster notifying employees of their obligation to contact a counselor
within 45 days of the discriminatory event was posted at the entrance
and exit to the building, in glass-enclosed official bulletin boards.
The Senior EEO Specialist also stated that additional copies of the
poster were placed on bulletin boards in break rooms, which were located
on every floor of every building in the complex. The Commission finds
that the Senior EEO Specialist's declaration is sufficient to establish
that complainant had constructive notice of the 45-day time limit on
the date of the most recent occurrence.
Accordingly, the agency's final decision dismissing complainant's
complaint 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 11, 2003
__________________
Date