01a22051
03-04-2003
Richard I. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard I. Jones v. United States Postal Service
01A22051
3/4/03
.
Richard I. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22051
Agency No. 1D-231-0051-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a General Expediter at the agency's Richmond, Virginia facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 3, 2001, alleging that he was discriminated against
on the bases of race (African-American), sex (male), age (D.O.B. 8/4/29),
and reprisal for prior EEO activity when on January 30, 2001, he was
denied a room and telephone for a pre-hearing conference scheduled for
February 7, 2001.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that the complaint failed to state a
claim because complainant failed to establish how he suffered a harm
with respect to a term, condition or privilege of employment. In that
regard, the agency noted that complainant served as a representative
for another complainant's EEO complaint which was scheduled for a
telephonic pre-hearing conference before an EEOC Administrative Judge.
Ultimately, complainant and his client met with the EEOC Administrative
Judge via teleconference from complainant's home. Complainant states
that he requested the agency's conference room and speaker phone for
the pre-hearing conference, but was denied the space official time to
attend the conference. However, the agency found complainant failed to
state a claim because the meeting was ultimately held, and complainant
was not denied official time because he was not in a regular duty status
when the pre-hearing conference was scheduled.
The agency also found that complainant failed to establish a prima
facie case of discrimination because he failed to produce any evidence
of similarly situated individuals outside of his protected classes
who were treated more favorably. Furthermore, the agency found that it
articulated a legitimate, nondiscriminatory reason for denying complainant
the office space and phone, namely, that the agency was not required to
provide the space.
Upon review of the record, we observe that complainant contends that his
requests for official time pertained to EEO activities as a representative
for another EEO complainant. The Commission has held that the right
to official time for a representative flows from the EEO complainant,
and therefore, a denial of official time for a representative is
properly raised by the EEO complainant, and not the representative.
Lambert v. Social Security Administration, EEOC Request No. 05970586
(October 8, 1998). Therefore, we find that since complainant acted
as a representative on behalf of another individual, he does not have
standing to raise the issue of being denied official time.
In the alternative, we also find that the complaint could have
been dismissed for alleging dissatisfaction with the EEO Process.
EEOC Regulation 29 C.F.R. 1614.107(a)(8) provides that the agency
shall dismiss an entire complaint that alleges dissatisfaction with the
processing of a previously filed complaint.
We do note for the agency's information that the if meetings,
conferences, and hearings are scheduled outside of the complainant's
or the representative's normal work hours, agencies should adjust or
rearrange the complainant's or representative's work schedule to coincide
with such meetings or hearings, or grant compensatory time or official
time to allow an approximately equivalent time off during normal hours of
work. Management Directive 110 (MD-110) at p. 6-18 (November 9, 1999).
Therefore, after a careful review of the record, including and arguments
and evidence not specifically addressed in this decision, we affirm
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
3/4/03
Date