Priscilla H.,1 Complainant,v.Herbert H. Jackson, Jr., Acting Deputy Director, United States Government Publishing Office, Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120171675 (E.E.O.C. Dec. 7, 2018)

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

Priscilla H.,1
Complainant,

v.

Herbert H. Jackson, Jr.,
Acting Deputy Director,
United States Government Publishing Office,
Agency.

Appeal No. 0120171675

Agency No. GPO1635

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 10, 2017, final
decision concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Printing Plant
Worker, PPW-3, at the Agency’s Distribution and Services Outreach facility in Laurel,
Maryland.

On August 24, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of age (78) and reprisal for prior protected EEO activity
under the Age Discrimination in Employment Act of 1967 when:2

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 withdrew her race and color allegations and added reprisal as one of the bases of
discrimination during the investigation.
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1. On June 6, 2016, Complainant was charged with seven hours of absent without
leave (AWOL) for going to the EEO office to file a complaint; and
2. On June 7, 2016, Complainant was told she needed to get to work while she was
on the phone with her EEO representative.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Complainant appealed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

The Commission has stated that an allegation pertaining to the denial of official time states a
separate claim alleging a violation of the Commission's regulations, without requiring a
determination of whether the action was motivated by discrimination. See Edwards v. U.S.
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 Commission has also held that such a claim should not be processed in
accordance with 29 C.F.R. § 1614.108, since the focus is not on the motivation, but rather the
justification why the complainant was denied a reasonable amount of official time. Id. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 6-
16 (August 5, 2015) states that the Commission considers it reasonable for agencies to expect
their employees to spend most of their time doing the work for which they are employed.

Regarding Complainant’s request for official time, the Commission agrees, under the
circumstances of this case, that the Agency’s denial of Complainant’s requests for time on June
6, 2016 and June 7, 2016, as well as the Agency’s AWOL charge against Complainant for seven
hours of time was reasonable.

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The record reveals that Complainant sent an email to her immediate supervisor (S1) on Friday,
June 3, 2016, stating that she would be late to work on Monday, June 6, 2016. Complainant
stated she had an appointment with “EEO” so she would be going directly from her home to the
appointment. Complainant’s email indicated she would be late to work but returning to work
after her appointment with the EEO counselor. Complainant did not submit a written request for
a full day off prior to her meeting with her EEO counselor. Agency Directive 650.15B provides
for official time to be used, with prior approval, for meetings with EEO counselors when a
written request to a supervisor is submitted no later than two business days prior to the time that
an employee needs official time.

Complainant’s June 6, 2016 meeting with the EEO counselor lasted an hour and a half according
to the record. After the meeting ended at 10:30 a.m., Complainant did not return to work. She
acknowledged in her affidavit that after the meeting, her second-level supervisor (S2) informed
her that she would only be allotted two hours of official time. In response, Complainant averred
her union president told S2 that Complainant should have six hours of time. A review of the
record establishes that on that day at 12:31 p.m. Complainant’s union president emailed S2
requesting six hours of official time. S2 responded by email shortly thereafter that Complainant
would be given time for her meeting but not the entire day. Complainant failed to properly
request official time before her meeting and was informed she was to return to work after her
meeting. Ultimately, Complainant was given two hours of official time for her 1.5 hours of EEO
counseling. Complainant does not allege she was denied any other official time. Accordingly,
the Agency did not violate 29 C.F.R. § 1614.605 when it denied her official time and charged her
seven AWOL hours. Furthermore, we find no evidence showing that the Agency’s decision to
put Complainant on AWOL for taking time off without prior permission was discriminatory.

Regarding the events on June 7, 2016, Complainant admits she was not on her break when
speaking to her union/EEO representative on her cell phone at her desk. In accordance with the
Agency’s directive, the record establishes Complainant did not submit in writing for prior
approval of official time for the phone call with her representative. Complainant does not allege
she was charged with AWOL time for this incident. Accordingly, this Commission finds there
was no violation of 29 C.F.R. § 1614.605. Furthermore, we find no evidence that the incident
was motivated by discrimination or retaliation.

CONCLUSION

We AFFIRM the Agency’s final decision.
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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

December 7, 2018
Date