[Redacted], Adam F., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020003345 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam F.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003345 Hearing No. 420-2014-00079X Agency No. DON-13-68322-01699 DECISION On April 16, 2020, 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 12, 2020 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Personnel Psychologist, GS-0180-12 at the Agency’s Navy Advancement Center, Naval Education and Training Professional Development and Technology Center in Pensacola, Florida. On May 28, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when: 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. 2020003345 2 1. on April 1, 2013, Complainant’s supervisor directed him to stop working on weekends; 2. on April 8, 2013, Complainant was threatened with disciplinary action by his supervisor in response to an email Complainant sent to coworkers on March 25, 2013; and 3. on April 22, 2013, Complainant’s request for compensatory time to work during the weekend of April 20-21, 2013 was denied. In Adam F. v. Dep’t of the Navy, EEOC Appeal No. 0120182748 (Nov. 20, 2019), we affirmed the Agency’s final order fully adopting an EEOC Administrative Judge’s decision finding that Complainant did not prove he was retaliated against as alleged. However, we found that a fair reading of the record demonstrated that Complainant was alleging that he was denied a reasonable amount of official time to work on EEO matters (including claim (3)). We noted that Complainant requested compensatory time 14 times, approximately 10 hours per request, and that Complainant was granted 22 hours of compensatory time in March 2013. The record showed that Complainant had requested, and received, 52 hours of compensatory time between June and September 2012, and 10 hours in October 2011. In each situation, Complainant’s stated reason for compensatory time was work-related, not EEO-related. We acknowledged Complainant’s argument that he previously requested official time in the form of a decreased workload, but specifically rejected the notion that Complainant’s request for a decreased workload constituted a “standing request” for official time. Nevertheless, we agreed that Complainant’s actions during this time period raised the specter of a claim that Complainant was improperly denied official time because of the possibility he was being forced to work overtime as a result of working on his EEO matters during duty hours. Because this claim was not addressed by the Agency and because there was insufficient evidence in the record to adjudicate the matter, we remanded the issue for a supplemental investigation solely into the question of whether Complainant was improperly denied official time. We required the Agency to provide a copy of its policy for providing official time, explain its policy for accommodating a requesting employee’s workload to offset official time granted, and to determine whether the Agency’s actions violated this policy. We also required the Agency to investigate whether Complainant was effectively forced to work additional hours as compensatory time or overtime due to requesting reasonable time under the Agency’s existing policy. In response, the Agency stated that it did not have a formal written policy on official time between September 2011 and July 2013. Rather, it relied on language in 29 C.F.R. § 1614.105 and Chapter 6 of Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110). The Agency acknowledged that such language required it to “grant reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information.” EEO MD-110 adds that the actual number of hours will vary depending on the complexity of the case. 2020003345 3 The Agency denied that Complainant was effectively forced to work additional hours. Agency officials explained that Complainant requested and was allowed compensatory time to perform his duties during Advanced Examination Readiness Reviews (AERRs), which are meetings the Complainant hosted as part of his official duties. Further, Agency management told Complainant to “request official time to work on EEO matters and he was informed that compensatory time was not to be used to work on EEO matters.” In the record, Complainant is asked whether he has been granted official time to work on his EEO complaint. In response, Complainant says, “Not in the manner that I believe it should be given.” Complainant adds that he believes EEO MD-110 “does not say official time has to be in hours; it is based on the circumstances.” Complainant asserts the amount of official time he is given should be measured in terms of his workload. In an email on September 29, 2011, Complainant articulates similar arguments to his supervisor. In response, his supervisor says she will take Complainant’s input regarding work assignments into consideration. On January 2, 2012, Complainant asked his supervisor for a reduction of his workload by half. In response, his supervisor notes that such a reduction would be “very significant” and asks Complainant to identify how much time, in hours, he would need to work on his complaint. Complainant responds, “I would not be exaggerating to say that I spend at least 40 hours per week.” On March 21, 2012, Complainant sought 12 hours of official time. The next day, Complainant’s supervisor granted the request. On April 26, 2012, Complainant responded to an EEO investigator, copying his supervisor, saying that he had not been given adequate official time to work on a document request by the investigator concerning a case on which Complainant was acting as a representative. The next day, Complainant’s supervisor responded that she has reviewed her emails and files and found no documentation suggesting that Complainant had made such a request. The supervisor was willing to consider the request if Complainant provided sufficient information for the supervisor to make a decision. On May 4, 2012, the supervisor granted Complainant two hours of official time to assist the employee he represented, who received 4 hours. On May 11, 2012, an Agency attorney informed Complainant’s supervisor that Complainant had approximately one to two hours of official time for a conference call with an EEOC Administrative Judge. Complainant’s supervisor responded that she had not received a request from Complainant for the time but would ensure that it was accounted for appropriately. On June 25, 2012, Complainant informed his supervisor that he had to schedule depositions that conflict with his office’s EO TPDP2 process. Complainant suggested that he could attend another TPDP. In response, Complainant’s supervisor agreed that Complainant can attend another TPDP. 2 TPDP is not otherwise identified in the record. 2020003345 4 Complainant’s supervisor also approved 10 hours of official time on July 9, 2012, in response to an email request from Complainant to reduce his workload by half. Additionally, she granted Complainant two and a half hours of official time on July 17, 2012 for an interview with an investigator. At the conclusion of the supplemental investigation, the Agency issued a final decision finding that it did not fail to provide Complainant with adequate official time to work on his EEO matters. The Agency reasoned that because EEO MD-110 does not contemplate large amounts of official time for preparation purposes, the EEOC “considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed.” The Agency concluded that Complainant’s supervisors made him aware of the requirements to request official time, and to do so in terms of hours, not a specific reduction in workload. As a result, the Agency contends that the amount of official time approved was reasonable. CONTENTIONS ON APPEAL On appeal, Complainant argues that EEO MD-110 and 29 C.F.R. § 1614.605(b)’s provision that individuals “are entitled to a reasonable amount of official time to present the complaint and to respond to agency requests for information, if otherwise on duty,” equates to a presumption that the purpose of official time is to grant a complainant “a degree of relief from his normal work duties.” (Emphasis in original.) Complainant further contends that, due to the nature of his work, he can only obtain meaningful relief if his workload is reduced. Complainant does acknowledge that he refused to articulate his request in terms of hours but contends that provides him with no effective relief. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.605(b) provides, in pertinent part, that if a complainant is otherwise in pay status, the agency shall consider him to be on official time, regardless of tour of duty, when his presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulations and does not require a determination of whether the denial was motivated by discrimination. See Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a 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 a reasonable amount of official time. Edwards, supra. We are not persuaded by Complainant’s arguments, both in the investigative file and on appeal. Complainant seeks to frame the language articulated in EEO MD-110 to permit him to express official time in terms of his workload. Complainant misreads the discussion on whether hours is a reasonable amount of official time. Whether an amount of official time was reasonable under EEO MD-110 remains a discussion of time, not workload. EEO MD-110 refers to a “reasonable amount of time . . . if otherwise on duty.” 2020003345 5 The “if” in this clause makes clear that EEO MD-110 does not contemplate that a complainant must restrict his or her EEO activities only to time that falls within duty hours. Indeed, an agency has a reasonable expectation that its employees will spend most of their time performing the duties of their position. See Carl M. v. Consumer Fin. Prot. Bureau, EEOC Appeal No. 0120182412 (Dec. 11, 2019). In his emails, Complainant consistently requested a reduction that his supervisor characterized as half of his workload. We find that his supervisor’s request for an estimate of hours was reasonable and Complainant does not otherwise argue that the Agency’s grant of official time on various occasions was unreasonable. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020003345 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 May 25, 2021 Date