01975522
07-23-1999
Carlton Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carlton Smith, )
Appellant, )
) Appeal No. 01975522
v. ) Agency No. 4I-630-1109-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
In accordance with the provisions of EEOC Order No. 960.001, appellant's
appeal from the agency's final decision in the above-entitled matter
has been accepted by the Commission.
Appellant filed two complaints in which he alleged that the agency
discriminated against him on the bases of race (black) and reprisal by
granting him less official time than he requested for the processing
of earlier complaints. The record indicates that appellant submitted
requests for four hours of official time on February 2, 1994, and
February 4, 1994, in order to appeal two final agency decisions to the
Commission, but that he was only granted one hour of time per case.
Exhibits 1, 2. He also stated that he submitted a third request for
official time, which was denied on November 28, 1995. Affidavit A.
The maintenance supervisor stated that the officer-in-charge made the
decisions regarding appellant's official time requests in 1994. He also
stated that his records did not reflect a request for EEO time on November
28, 1995. Affidavit B. Paragraph (6) of the request form indicates
that the requestor is required to submit documentation to management
to substantiate the need for a reasonable amount of official time.
The record does not contain such documentation. Appellant indicated on
one form that he objected to the �agency's mandate to submit documents.�
Exhibit one, p. 2. On another request form, appellant wrote:
�Time granted by [the officer-in-charge] of one hour is insufficient
and harassment. It takes considerable time to perfect an appeal after
the [agency] intentionally screwed up the record.�
We note that the agency processed appellant's official time allegation
as an allegation of discrimination, rather than an allegation of denial
of official time. The Commission's regulations state that a complainant
shall have a reasonable amount of official time to prepare the complaint,
and to respond to agency or Commission requests for information.
29 C.F.R. �1614.605(a). The Commission defines reasonable as whatever
is appropriate under the particular circumstances of the complaint.
EEO Management Directive 110 pp. 5-15 - 5-16 (1992).
February 1994 Requests: The request forms explicitly stated that the
requestor was to submit documentation to management to substantiate
the need for official time in EEO matters. Appellant did not provide
the requested documentation. Instead, he set forth his objection
to the documentation requirement in the February 2 request. In the
February 4, request, he stated, without elaborating, that one hour of
time was insufficient. Without written substantiation of the requests,
the agency was unable to determine whether four hours was reasonable.
We therefore find that the agency's approval of one hour's time on each
of the requests was consistent with the Commission's regulations, and
with the guidance set forth in Management Directive 110.
November 1995 Request: The investigative file does not contain a
copy of a written request for official time dated from November 1995.
The maintenance supervisor stated that his records did not include a
request for EEO time submitted on November 28, 1995. Appellant had the
opportunity to identify the whereabouts of the 1995 request for official
time, but did not do so. We therefore find appellant's claim regarding
the 1995 official time request to be without merit.
Based upon our review of the record, and for the foregoing reasons, the
Commission finds that appellant has not demonstrated that the agency's
responses to his requests for official time to process his EEO complaints
were improper or inconsistent with our regulations.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
07-23-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations