01970585
05-22-2000
Alick Zhang, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alick Zhang v. United States Postal Service
01970585
May 22, 2000
Alick Zhang, )
Complainant, )
) Appeal No. 01970585
v. ) Agency No. 1D-221-1013-95
) Hearing No. 100-95-7445X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. <1> The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Complainant alleges he was
discriminated against on the basis of reprisal (prior EEO activity)
when he was denied 4 hours of overtime compensation for time spent at
an EEOC hearing on September 7, 1994.
The record reveals that complainant, a Mail Handler, PS-4, filed a
formal EEO complaint with the agency on November 25, 1994, alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a summary judgment decision without a hearing
on August 13, 1996 recommending a finding of no discrimination.
The undisputed facts are as follows: Complainant requested and was
granted a schedule change by his supervisor (S3) (Tour 3 Distribution
Operations) in order to attend his EEO hearing on September 7, 1994.
Accordingly, complainant reported to work at 6:00 a.m. on September
7, 1994. Complainant left his work station to meet with his EEO
representative in the cafeteria. Failing to find his representative,
complainant returned to his work station. The supervisor at
complainant's work station (S2) (Tour 2 Distribution Operations)
could not find complainant's approved schedule change. Accordingly,
S2 took complainant off the clock at 7:45 a.m. and told him to wait
until 9:00 a.m. for his EEOC hearing to begin. The hearing lasted until
approximately 6:30 p.m. and complainant was paid for 8 hours of work
(6:00 a.m. to 2:00 p.m.) based on a straight time rate for the day.
The agency asserts that the compensation of complainant in the EEO process
is governed by the Memorandum for Regional Directors and Field Directors,
Human Resources, dated June 4, 1987. According to this memorandum,
complainants are not entitled to overtime pay in connection with any
EEO hearing. In response, the complainant argues that the agency's
policy violates EEOC Regulation 29 C.F.R. �1614.605(b) and the EEOC's
EEO Management Directive MD-110.
The AJ found no evidence of reprisal and held that the EEOC regulations
require that a complainant be provided with a "reasonable amount of
official time" but that the agency is not obligated to incur overtime
wages.
EEOC Regulation 29 C.F.R. �1614.605(b) provides in part: "The complainant
and the representative, if employed by the agency and otherwise in a
pay status, shall be on official time, regardless of the tour of duty,
when their presence is authorized or required by the agency or the
Commission during the investigation, informal adjustment, or hearing on
the complaint." In addition, the EEOC's Management Directive (MD-110)
states that "whatever time is spent in [official EEO] meetings or hearings
is automatically deemed reasonable. ... If a complainant or representative
has already worked a full week and must attend a hearing or meeting on
an off day, that complainant or representative is entitled to official
time, which may require that the agency pay overtime." EEOC Management
Directive (MD-110), November 9, 1999, pg. 6-16.
Complainant's complaint alleges reprisal discrimination when the agency
improperly denied him 4 hours of overtime associated with his attendance
at the EEO hearing on September 7, 1994. We, however, find that the
more appropriate analysis is whether complainant was entitled to official
time under 29 C.F.R. �1614.605(b)(2). We note in this regard that it
is not relevant whether the agency's action was motivated by reprisal
against the complainant's prior EEO activity. The agency, by denying
complainant compensation for the entire time spent at the EEO hearing,
denied him official time. The denial of official time to complainant
in this situation was a violation of 29 C.F.R. �1614.605(b)(2).
The Commission has the authority to remedy such a violation, without a
finding of discrimination. See Albert Edwards v. United States Postal
Service, EEOC Request No. 05950708 (October 31, 1996). Since the agency
does not dispute the fact that complainant was approved for straight time
pay from 6:00 a.m. to 2:00 p.m. and that he remained at the hearing until
approximately 6:30 p.m., on September 7, 1994, the agency is required
to reimburse him 4 hours of overtime pay. Accordingly, and for the
reasons set forth above, we hereby REVERSE the agency's final decision.
ORDER
The agency is ORDERED to reimburse complainant at an overtime rate for
the time he spent participating in the September 7, 1994 EEO hearing
beyond his scheduled tour of duty in accordance with federal regulations.
If there is a dispute about the payment, the agency is ORDERED to issue
a check to the complainant for the undisputed amount within thirty (30)
calendar days of the date this decision becomes final. The complainant
may petition for enforcement or clarification of the amount in dispute,
as set forth below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.