0120152228
10-03-2016
Elene K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elene K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152228
Agency No. 4G-770-0330-09
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision issued, pursuant to 29 C.F.R. � 1614.605, in October 2010, concerning her claim that she was denied official time to meet with her representative during the EEO complaint process.
BACKGROUND
At the time of the events at issue, Complainant was employed by the Agency as a Letter Carrier in Houston, Texas.
In November 2009, Complainant filed an EEO complaint (Agency No. 4G-770-0330-09) that alleged, among other things, that she had been denied official time to meet with her EEO representative. The Agency dismissed the complaint in its entirety. Complainant appealed to this Commission.
In EEOC Appeal No. 0120101193 (June 21, 2010), request for reconsideration denied, EEOC Request No. 0520100486 (August 31, 2010), we affirmed the Agency dismissal of the other claims in Complainant's EEO complaint for failure to state a claim. However, we remanded her allegation concerning the denial of official time for further inquiry and the issuance of a final decision. On October 21, 2010, the Agency issued it final decision, indicating it had conducted the inquiry, and was concluding that Complainant failed to establish that she was denied reasonable official time. Complainant's appeal followed.
In her affidavit2 prepared during the inquiry into her official time claim, Complainant asserted that her representative was also employed by the Agency, but worked at a different facility. She stated that she needed to consult with her representative about several EEO complaint processing matters, and made a number of requests to meet with her representative starting on August 19, 2009. However, she stated that management did not make an appointment for her to meet with her representative for over a month, after several deadlines had passed.
Complainant's supervisor denied her allegations. He stated that when she requested he authorized her to meet with her representative on official time and to travel to his work location to do so. He further stated that he made contact with the management at Complainant's representative's facility to arrange a date, time and place for the meeting.
ANALYSIS AND FINDINGS
The Commission has stated that an allegation pertaining to the denial of official time states a separate claim alleging a violation of EEOC regulations, without requiring a determination of whether the action was motivated by discrimination. Bryant v. Department of Treasury, EEOC Appeal No. 0120065274 (Feb. 25, 2009) (citing Edwards v. U.S. Postal Service, EEOC Request No. 05960179 (Dec. 23, 1996)). Therefore, the Commission has the authority to remedy a violation of 29 C.F.R. � 1614.605 without a finding of discrimination." Id.
After careful review of the limited record (see footnote 2), as well as the arguments submitted on appeal, we concur with the Agency's decision that Complainant failed to produce evidence that she was improperly denied official time to meet with her representative during the timeframe identified in her November 2009 EEO complaint (Agency No. 4G-770-0330-09). First, while Complainant submitted several copies of forms requesting official time, there is no indication on those forms that her requests were denied. Based on Complainant's brief on appeal, it appears that she is not actually alleging that she was denied official time, but that management delayed in making the necessary arrangements for her to meet with her representative. This Commission has already ruled on a similar official time claim by Complainant in an earlier decision, indicating that some delay was reasonable because Complainant and her representative worked in two separate facilities, requiring coordination between two management teams, and the consideration of work schedules and the operational needs of two facilities. See, EEOC Appeal No. 0120092048 (August 27, 2009). Moreover, even assuming in the instant matter that the delay occurred as alleged by Complainant, she has not provided any evidence that she suffered any harm as a result. While her statement on appeal indicates that a request for reconsideration filed with EEOC was dismissed as untimely filed because of the delay, we have no record of such a dismissal during this timeframe, and Complainant provided no evidence of one.
Accordingly, for the reasons stated above, we find that Complainant has failed to establish that she was denied reasonable official time in the fall of 2009 as alleged in Agency No. 4G-770-0330-09. The Agency's decision on this matter is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant's appeal, which she later proved was timely filed by certified mail on November 20, 2010, was apparently never received by EEOC and, as a result, was not docketed until June 2015. By the time EEOC requested the file of the inquiry into the official time issue from the Agency in 2015, the file no longer existed. However, Complainant, in her appeal, sent copies from her own records of the relevant documents.
3 On appeal, Complainant raised a number of new claims concerning ongoing harassment. If she has not already done so, Complainant is advised that if she wishes to pursue these claims, raised for the first time on appeal, she should initiate contact with an EEO counselor at the Agency.
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