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