01983650
05-14-1999
Donna Welch, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service Agency.
Donna Welch, )
Appellant, )
)
v. ) Appeal No. 01983650
William J. Henderson, )
Postmaster General, )
United States Postal Service ) Agency No. 1A-126-0069-97
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant alleged
that she was discriminated against on the basis of reprisal (prior
EEO activity), when she was denied official time to meet with her
representative and the EEO Counselor. Specifically, appellant alleges
that on April 10, 1997, she requested official time to meet with her
representative concerning two cases she had previously filed. She
maintains her request was denied. She asked again on April 11, 1997,
and when she did not receive a response, she and her representative met
for 15 minutes on their break time. She states her representative again
used 15 minutes on another break to write a letter inquiring about the
status of the two pending cases. Appellant further alleges on April 17,
1997, a management official put a 20 minute time limit on her meeting
with her representative and requested that the representative call if
he needed more time. At some point, the management official instructed
the EEO representative to return to the workroom floor.
Management maintains that none of appellant's requests for official time
were denied. Instead, all requests for official time were referred
to the Manager, Distribution Operation for approval. The manager then
contacted the EEO office to determine whether the request stemmed
from a need to respond to the agency or a request for information. In
short, no individual supervisor had the authority to grant official time
without proper clearance, so management response could not be instantly
given. Management maintains that a 24 hour time span was not a sufficient
period of time for the agency to make the necessary inquiry and render
an informed determination on appellant's request.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) states that the agency shall
dismiss a complaint or a portion thereof, which fails to state a claim
under 29 C.F.R. �1614.103 or 29 C.F.R. �1614.106(a). To establish
standing as an �aggrieved employee� within the context of �1614.103,
appellant must allege that she has been injured in fact. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). 29 C.F.R. �1614.605(b), provides that a complainant and
her representative shall have a reasonable amount of official time
�to prepare the complaint and respond to agency and EEOC requests for
information�. Also See MD-110, 5-14,15. In the present case, we find that
appellant was not denied her requested official time. Appellant met
with her representative prior to the agency's response to her request
for official time. Appellant was not charged any leave, thus she was
granted official time. We find that appellant has sustained no injury,
i.e. denial of official time and as such, find that her complaint fails
to state a claim.
Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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.
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 this 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 this 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 this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (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.F.R.).
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 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations