[Redacted], Nobuko M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020004760 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nobuko M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020004760 Agency No. 4B-100-0065-19 DECISION By un-postmarked envelope received by the Equal Employment Opportunity Commission (EEOC or Commission) on April 1, 2020, Complainant filed a timely appeal from a final Agency decision (FAD) dated February 14, 2020, dismissing his complaint alleging unlawful 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Laborer Custodial, PS-4, at its Franklin Delano Roosevelt facility, Maintenance Unit, in New York, New York. On April 11, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging, in part, that the Agency in March 2019, denied his request for official time for EEO. The Agency procedurally dismissed his EEO complaint, and Complainant appealed. In EEOC Appeal No. 2019004990 (Nov. 21, 2019), the Commission advised that a denial of official time claim is processable as alleging a violation of EEOC regulations, and Complainant was entitled to have this claim processed by the Agency. 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. 2020004760 2 Thereafter, by letter dated December 10, 2019, the Agency requested Complainant give as much information as he could on why he requested official time in March 2019, the amount he requested, and the amount he was granted, if any. He then sent a letter to the Agency dated December 21, 2019, that was not responsive to the Agency’s inquiry. Thereafter, the Agency gathered documentation on Complainant’s claim - two requests in March 2019, by him for official time using leave request forms and an affidavit by the supervisor who acted on them. In the leave forms Complainant requested eight hours each of official time for March 6, 2019 and March 13, 2019, “to take off [sic.] EEO/EEOC Matters.” In a supervisory field of the first leave request form the supervisor wrote “[illegible] hours is enough time,” and in the second wrote “untimely this [illegible] put on my desk yesterday evening. EEO [illegible].” In his affidavit, the supervisor explained he denied Complainant’s first request for the reason indicated above and advised him he would instead be afforded four hours of official time, and he disapproved the second request for untimely submission. Thereafter, the Agency’s EEO function issued a FAD upholding the supervisor’s decisions because in the first and second requests Complainant did not explain why he needed eight hours each of official time, and on the second request he did not provide adequate notice to his supervisor. The instant appeal followed. On appeal, Complainant contends that he did not receive the December 10, 2019 inquiry and that the postal delivery receipt for the inquiry indicating delivery (signed by someone with his last name) is fraudulent and was not signed by him. ANALYSIS AND FINDINGS As an initial matter, we need not determine whether Complainant received the December 10, 2019 inquiry. The FAD, which he received, both discussed the inquiry and was accompanied by a small complaint file that included it, so Complainant has the opportunity now to respond, which he did. 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. 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. 2020004760 3 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 (REV. Aug. 5, 2015). Regarding the denial of four of the eight hours of official time Complainant requested for March 6, 2019, there is no information from Complainant in the record below, and he does not elaborate on appeal why he needed official time other than saying it was for EEO. This is not enough information to show that his request for more than four hours of official time was reasonable. On the denial for giving insufficient notice of his request for eight hours of official time for March 13, 2019, on appeal Complainant argues there are no rules for how far in advance a request for official time must be made, and it is up to the discretion of the supervisor. Even if we accept Complainant’s argument, he made the request the evening before he wished to use the official time by placing the request on the supervisor’s desk. Given that Complainant has not explained why he needed the official time beyond indicating it was for EEO and the likely disruption to postal operations with such little notice, Complainant has not shown the supervisor acted inappropriately. The FAD is AFFIRMED. 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. 2020004760 4 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. 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. 2020004760 5 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 20, 2021 Date