Ollie N.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120172978 (E.E.O.C. Nov. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ollie N.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120172978
Agency No. HS-CBP-00474-2013

DECISION

On September 8, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
decision (FAD) dated June 20, 2017, concerning the amount of official time he was granted to
litigate his equal employment opportunity (EEO) complaint.2

BACKGROUND

At the time of events giving rise to this matter, Complainant was employed by the Agency as a
Supervisory Border Patrol Agent, GS-1896-13 with the Customs and Border Protection, Swanton
Sector, Burke Border Patrol Station in Malone, New York.

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 The Agency argues that Complainant’s appeal is untimely, and should be dismissed because the
FAD was mailed to him on June 20, 2017, but his appeal was not filed until September 8, 2017,
beyond the 30-day time limit. The Agency concedes Complainant contacted it on August 3, 2017,
said the appeal rights were not included with the FAD, and requested them. The Agency writes
that it re-mailed them to him the same day, and they were also included with the FAD mailed on
June 20, 2017. We exercise our discretion to accept Complainant’s appeal as timely filed. It is
plausible that the Agency inadvertently did not include the appeal rights, which are printed
separately from the FAD.
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On December 12, 2012, Complainant filed an EEO complaint (“Complaint 2”) alleging, in relevant
part, that the Agency discriminated against him based on reprisal for prior protected EEO activity
under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621
et seq., when on November 21, 2012, November 29, 2012, and December 4, 2012, it approved
only a portion of the official time he requested to respond to discovery requests on a previously
filed EEO complaint (“Complaint 1”).

In EEOC Appeal No. 0120150591 (Feb. 23, 2017), the Commission affirmed the Agency’s
procedural dismissal of a portion of Complaint 1, affirmed an Equal Employment Opportunity
Commission Administrative Judge (AJ’s) decision without a hearing finding no discrimination on
other allegations in Complaints 1 and 2, and affirmed the AJ’s finding that the Agency granted
Complainant a reasonable amount of official time for January 30, 2013. The Commission also
found that the AJ did not address Complainant’s claim that on November 21, 2012, November 29,
2012, and December 4, 2012, the Agency denied portions of the official time he requested, and
that there was insufficient information in the record to rule on this.

Citing Commission precedent, the decision in EEOC Appeal No. 0120150591 instructed that a
denial of official time claim concerns a violation of its regulations and does not require a
determination of whether the denial was motivated by discrimination. It added that for this reason,
an official time claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., since
the focus is not on the motivation, but rather on the justification of why the complainant was denied
official time. It remanded the above official time matter to the Agency to gather information and
issue a FAD.

On remand, the Agency gathered information on Complainant’s official time claim from
Complainant and Agency management. Thereafter, it issued a FAD finding that management
granted Complainant a reasonable amount of official time on the dates in question. The instant
appeal followed.

Complainant argues that the Agency did not grant him a reasonable amount of official time or
include all evidence he submitted. He does not identify what evidence he submitted that was left
out of the record. In opposition to the appeal, the Agency argues that the FAD should be affirmed.

ANALYSIS AND FINDINGS

Agencies shall afford complainants a reasonable amount of official time to allow a complete
presentation of the relevant information associated with their complaint and to respond to agency
requests for information. 29 C.F.R. § 1614.605. The actual number of hours to which a
complainant is entitled will vary, depending on the nature and complexity of the complaint and
considering the mission of the agency and the agency’s need to have its employees available to
perform their normal duties on a regular basis. Whatever time is spent in meetings and hearings
with Agency officials or AJs processing a complaint is automatically deemed reasonable.

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Because investigations are conducted by agency or Commission personnel, the above regulation
does not envision large amounts of official time for preparation purposes. Consequently,
“reasonable,” with respect to preparation time (as opposed to time in meetings and hearings), is
generally defined in terms of hours, not in terms of days, weeks, or months, albeit what is
reasonable depends on the individual circumstances of each complaint. EEOC Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 6, § VII.C,
at 6-16 – 6-18 (as revised, Aug. 5, 2015).

Complainant requested 40 hours of official time for November 27, 2012 – December 1, 2012, to
respond to the Agency discovery requests on Complaint 1. On November 21, 2012, Agency
management approved eight hours of the request to be used on either November 27, 2012 or
November 30, 2012, indicating this is what the schedule allowed, and additional supervision was
available to address supervisory workload issues. Management advised Complainant that it denied
some of his request due to the type of request, the current workload schedule, and limited
supervision during the time frame requested, but after he used the approved time management
would revisit approving more if necessary. Thereafter, Complainant requested 16 hours of official
time for November 30, 2012 – December 1, 2012, to respond to Agency discovery requests on
Complaint 1. On November 29, 2012, Agency management approved eight hours of the request to
be used on November 30, 2012, mirroring its explanation and offer to revisit above. Complainant
then requested 16 hours of official time for December 6, 2012 – December 7, 2012. On December
4, 2012, Agency management approved four hours of the request to be used on December 10, 11,
or 12, 2012, at the beginning of his shift, mirroring the explanation and offer to revisit above.

Complainant submitted an email dated December 4, 2012, to his non-attorney representative, with
a copy to him from the attorney who represented the Agency on Complaints 1 and 2, in response
to his concern that he was not granted enough official time. The attorney wrote that in addition to
the official time granted, Complainant was given permission to respond to the Agency’s discovery
requests while he was on duty, where as a supervisor he had access to a private office while still
being available to assist Border Patrol Agents who needed assistance from a supervisor. The
attorney questioned why the approved time was insufficient.

On remand, Complainant asked that the discovery requests for Complaint 1 be submitted into
evidence. While the Agency did not do so, Complainant, to whom the discovery requests were
made, was free to make them part of the record or submit them on appeal. Complainant does not
contest that in addition to official time, he was given permission to respond to the Agency’s
discovery requests while he was on duty, where as a supervisor he had access to a private office
while still being available to assist Border Patrol Agents who needed assistance from a supervisor.
As recited above, a “reasonable” amount of official time with respect to preparation time, like
responding to discovery requests (as opposed to time in meetings and hearings), is generally
defined in terms of hours, not in terms of days, weeks, or months. Complainant has failed to show
that he was not granted a reasonable amount of official time.

Accordingly, the FAD is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

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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

November 21, 2018
Date