Ernesto R. Redolfin, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 28, 2009
0120083911 (E.E.O.C. Oct. 28, 2009)

0120083911

10-28-2009

Ernesto R. Redolfin, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Ernesto R. Redolfin,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120083911

Hearing No. 480-2007-00268X

Agency No. 05-2239

DECISION

On September 11, 2008, complainant filed an appeal from the agency's

August 27, 2008 final order concerning his equal employment opportunity

(EEO) complaint alleging that he was denied a reasonable amount

of official time in violation of 29 C.F.R. � 1614.605(b) when his

representative was denied two hours of official time to assist him in

preparing his EEO complaint. For the following reasons, the Commission

AFFIRMS the agency's final order.

At the time of events giving rise to this complaint, complainant worked

as an Internal Revenue Agent at the agency's work facility in Glendale,

California. On February 22, 2005, complainant filed an EEO complaint

wherein he claimed that he was discriminated against on the basis of

reprisal when he was denied a reasonable amount of official time when

his representative was denied two hours of official time to assist him

in preparing his EEO complaint.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The agency filed a Motion for Summary Judgment

Without a Hearing and complainant filed an Opposition to the agency's

Motion. The AJ assigned to the case issued a decision without a hearing

on July 17, 2008.

The AJ did not issue a finding on the issue of discrimination but rather

found that the agency improperly denied complainant's representative a

reasonable amount of official time. The AJ observed that complainant's

representative requested from his Manager on November 12, 2004, that he

receive three hours of official time to assist complainant in filing

an EEO complaint. The representative stated that one hour was for

counseling complainant and two hours for revising complainant's legal

brief, conducting additional legal research for him if necessary, and

adding legal and factual arguments to support his claims. Previously,

complainant had received eighty hours of official time from his Manager to

file his complaint and his representative was previously granted two hours

of official time by his Manager which was used on November 10 and November

12, 2004. The representative had informed his Manager that the deadline

for filing of the complaint was November 18, 2004. The Manager responded

that the request failed to include the amount of time requested so it

could not be approved. After the representative's Union Chief Steward

submitted a request for three hours of official time for him, the Manager

responded on November 18, 2004, that the representative must request

time in advance with sufficient lead time for him to seek guidance.

The Manager subsequently informed the representative that the EEO Office

stated that what he needed to do should not take more than an hour and

that he should explain in detail if more than one hour is needed.

The AJ noted that on November 22, 2004, the representative stated that

at least four hours would be needed to fill in the forms, research the

issues, and write a brief. The Manager reiterated that only one hour of

official time was approved. The AJ found that the representative was

denied a reasonable amount of official time when he was denied two of

the three hours that were requested on November 12, 2004. The AJ stated

that the request for three hours was reasonable in light of the legal

tasks that were yet to be performed. The AJ noted that complainant had

only worked with his attorney for two hours prior to the November 12,

2004 request. The AJ observed that the November 12 request was made

nearly one week before the filing deadline and thus the Manager had

adequate time for a response. The AJ further observed that the request

included sufficient information about how much time was needed and how

the time would be used for management to render an informed decision.

The AJ ordered that the agency pay complainant's representative for

two hours of annual leave. The AJ also ordered that the Managers and

Supervisors of the Small Business/Self-Employed Unit be asked to again

read and understand the process for requesting official time as explained

in EEO MD-110 and the agency's memorandum dated June 19, 2003.

The agency subsequently issued a final order on August 27, 2008.

The agency stated that it would fully implement the AJ's decision.

On appeal, complainant contends that the remedial relief awarded in

the AJ's decision was not commensurate with the level of harm that he

suffered due to the fact that the issue is not moot as it is capable

of recurring. Complainant maintains that the reading requirement for

understanding the official time requesting process is insufficient

to deter management from engaging in the same conduct in the future.

Complainant instead requests that the Small Business/Self-Employed Unit

Managers and Supervisors be mandated to study the Commission's rules and

regulations with an annual certificate requirement. Complainant further

requests that the Managers and Supervisors be admonished by the agency

if they continue to ignore agency policy and MD-110.

In response, the agency asserts that this matter is now moot because

complainant is retired and can not file any further claims. Moreover, the

agency notes that it fully implemented the AJ's award of remedial relief.

The agency argues that since complainant has retired, there is no chance

that the representative will suffer a similar denial of official time

when serving as complainant's representative in the future. The agency

maintains that complainant can not demonstrate any expectation of future

harm or that the alleged actions have not been completely eradicated.

"The Commission has stated that an allegation pertaining to the denial of

official time states a separately possible claim alleging a violation of

the Commission's regulations, without requiring a determination of whether

the action was motivated by discrimination." Bryant v. Department of

Treasury, EEOC Appeal No. 0120065274 (February 25, 2009) (citing Edwards

v. United States Postal Service, EEOC Request No. 05960179 (December 23,

1996)). The Commission has held that it has the authority to remedy a

violation of 29 C.F.R. � 1614.605 without a finding of discrimination."

Id.

The agency issued a memorandum dated June 19, 2003, specifically for

all Small Business/Self-Employed Managers pertaining to the process of

requesting official time. The memorandum provided that:

* Employees must request official time in advance and in writing (e-mail

requests are acceptable) from their immediate supervisor.

* Official time should be requested as soon as possible to allow

management ample time to respond to the request. For cases at the hearing

stage, official time should be requested one week or more in advance.

* The request for official time should provide sufficient detail to allow

management to determine if the amount of time requested is reasonable.

At a minimum, the request must include the following:

1. Why the time is needed. The request should identify by informal or

formal (TD#) case number, the case to which the request relates.

2. The location, date and times for which the official time is requested.

3. The amount of time, defined in terms of hours, and how it was

determined. Time spent commuting to and from home is not to be included

in the computation.

In issuing its final order, the agency fully implemented the AJ's finding

that complainant's representative was owed two hours of annual leave for

the improper denial of official time. We find that the agency improperly

denied two hours of official time in light of the fact that the agency

was afforded sufficient time to make a decision regarding the request

for official time and the amount of time requested was reasonable

given the work that still needed to be performed on the complaint.

Complainant previously had only two hours of official time to work with

his representative. On appeal, complainant challenges the remedial relief

awarded by the AJ. Based on our review of the record, we find that the

payment of two hours of annual leave is appropriate. We also find that

it was an appropriate and sufficient component of the AJ's Order that

Managers and Supervisors of the Small Business/Self-Employed Unit be

asked to read and understand the process for requesting official time as

explained in EEO MD-110 and the agency memorandum dated June 19, 2003.

The additional relief sought by complainant is not warranted.

The agency's final action implementing the AJ's finding that two hours

of official time was improperly denied is AFFIRMED.

ORDER

The agency is ORDERED to pay complainant's representative for two

hours of annual leave. The agency is further ordered to ask Managers

and Supervisors of the Small Business/Self-Employed Unit to read and

understand the process for requesting official time, as explained in

EEO MD-110 and the agency's memorandum dated June 19, 2003.

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation verifying

that the corrective actions have been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

October 28, 2009

__________________

Date

2

0120083911

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120083911