01A22079
12-23-2002
Robert D. Grigsby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Robert D. Grigsby v. United States Postal Service (Southwest Area)
01A22079
December 23, 2002
.
Robert D. Grigsby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A22079
Agency No. 4-G-780-0105-01
Hearing No. 360-A1-8306x
DECISION
On or around January 18, 2001, Robert D. Grigsby (�complainant�)
filed a formal equal employment opportunity (�EEO�) complaint against
his employer, the United States Postal Service (Southwest Area) (�the
agency�). In this complaint, complainant alleged that his supervisor
had discriminated against him because of his race (African American) and
color (Black), in violation of Title VII of the Civil Rights Act of 1964
(�Title VII�), as amended, 42 U.S.C. � 2000e et seq. More specifically,
complainant claimed his supervisor discriminated against him unlawfully
by refusing to allow complainant to take a certain amount of �official
time� to prepare for an EEO hearing at which he would be serving as
representative for another employee-complainant.
The agency investigated this complaint and complainant subsequently
requested a hearing on the matter before an administrative judge (�the
AJ�) of the U.S. Equal Employment Opportunity Commission (�EEOC� or
�the Commission�). On or around October 18, 2001, the AJ informed the
parties that she was proposing to issue a decision on the case without
first holding a hearing. Complainant apparently objected to this notice,
but the AJ subsequently issued a summary judgment in favor of the agency
anyway. In her ruling, dated January 9, 2002, the AJ found that there had
been no genuine issues of material fact in dispute and the complaint was
thus ripe for summary adjudication. The AJ then found that complainant
had established a prima facie case of race and/or color discrimination,
but could not prove that the agency's legitimate, non-discriminatory
reason for the denial of official time (i.e., that no official time
had ever in fact been denied) was a pretext for an unlawful animus.
The AJ thus concluded that the agency had not violated Title VII.
Complainant appealed this AJ ruling, and the agency's final order
(�FAO�) implementing it, to this Commission. In a brief submitted on
appeal, complainant takes pains to point out the material facts that
allegedly were in dispute, and why judgment in favor of the agency was
inappropriate. The agency submitted a cursory brief asking us to affirm
the lower rulings. After considering these submissions and the entire
record, we are now issuing this decision under the authority granted to
us by 29 C.F.R. � 1614.405(a).
In rendering this opinion, we must scrutinize the AJ's conclusions,
and the FAO adopting them, under the de novo standard of review.
See id. (stating that a �decision on an appeal from an agency's final
action shall be based on a de novo review . . .�); see also EEOC
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-16 (providing that an administrative judge's �decision to
issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)]
will be reviewed de novo�). This essentially means that we should look
at this case with fresh eyes. In other words, we are free to accept
(if accurate) or reject (if erroneous) the AJ's, and agency's, factual
conclusions and legal analysis � including on the ultimate fact of
whether intentional discrimination occurred, and on the legal issue of
whether any federal employment discrimination statute was violated here.
See id. at 9-15 (explaining that the de novo standard �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�).
After performing this de novo review, we have concluded that
complainant's complaint fails to state a claim upon which relief may
be granted. To be sure, employees who are EEO representatives for
other employee-complainants �shall have a reasonable amount of official
time, if otherwise on duty, to prepare the complaint and respond to
agency and EEOC requests for information.� 29 C.F.R. � 1614.605(b).
Similarly, the employee-complainants and their representatives �if
employed by the agency and otherwise in a pay status, shall be on
official time, regardless of their tour of duty, when their presence
is authorized or required by the agency or the Commission during the
investigation, informal [adjudication], or hearing on the complaint.� Id.
Nevertheless, the Commission has held that �only complainants may file
complaints regarding the denial of official time of a representative.�
Miller v. United States Postal Service, EEOC Appeal No. 01A12276
(Sept. 25, 2001), request for reconsideration denied, EEOC Request
No. 05A20137 (Feb. 7, 2002) [emphasis added]. Complaints filed by EEO
representatives alleging denial of official time (i.e., for working
on another employee-complainant's case) fail to state a claim under 29
C.F.R. � 1614.107(a)(1). See id. (dismissing a complaint filed by an EEO
representative who alleged he was discriminated against on the basis of
his age and in retaliation for prior EEO activity when the agency denied
him official time to prepare for EEO matters). Thus, because complainant
here filed the complaint in his capacity as an EEO representative for
another employee-complainant, his allegations of denial of official time
(i.e., to prepare for another employee-complainant's hearing) fail to
state a claim.
Accordingly, the AJ's decision and the FAO implementing it are vacated,
and complainant's complaint is dismissed.
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
December 23, 2002
__________________
Date