Sheryl S.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionNov 1, 20160120150144 (E.E.O.C. Nov. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheryl S.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120150144 Agency No. KC-13-0460-SSA DECISION The Commission accepts Complainant’s appeal from the May 18, 2014 final Agency decision (FAD) pursuant to 29 C.F.R. § 1614.605 concerning her claim that her Representative was denied a reasonable amount of official time to work on her appeal. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Agency’s Field Office in Trinidad, Colorado. On February 7, 2013, Complainant filed a formal complaint (Agency No. KC-13-0235-SSA). The Agency subsequently dismissed the complaint for failure to state a claim. On Complainant’s behalf, Complainant’s Representative filed an appeal (Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120131555) on March 18, 2013. The Representative was granted three and one half hours of official time to prepare and submit the Notice of Appeal to the Commission. On March 21, 2013, the Representative submitted a second request for three and one half hours of official time. The Representative’s supervisor (S1) denied the second request on March 25, 2013. Thereafter, the Representative made two additional requests for official time to work on the appeal, each for four hours. Both requests were granted; thus, the Representative was granted 11.5 total hours of official time to work on Complainant’s appeal. 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. 0120150144 2 Complainant’s Representative believed that this was insufficient time as the Commission ultimately rejected his arguments and dismissed the appeal. On May 14, 2013, Complainant filed a formal complaint alleging that the Agency denied her Representative the right to work on her appeal of Agency No. KC-13-0235-SSA without just cause. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that management granted the Representative a reasonable amount of official time to work on Complainant’s appeal. S1 stated that the Representative was initially granted three and one half hours of official time on March 18, 2013, to work on Complainant’s appeal. Complainant submitted a second request on March 21, 2013, but merely stated he needed the three and one half hours to “work on appeal.” S1 denied the request after consulting with the Civil Rights and Equal Opportunity Manager and Labor Relations Office because the Representative had not provided him with enough information to determine whether the EEO official time should be granted. S1 noted that he asked the Representative for more information to make a determination on the request, but the Representative refused to provide it. Further, S1 added that the Representative did not inform him that he needed the time to work on a brief for the appeal. On March 29, 2013, the Representative requested four hours of official time for April 4, 2013 and four hours of official time for April 5, 2013, to “complete a brief to submit to [the Commission.]” S1 consulted with the EEO Counselor and approved the requested time. S1 confirmed that he approved another request on April 8, 2013. The Agency noted that the collective bargaining agreement provided that a reasonable amount of time to work on EEO appeals is generally eight hours. Complainant’s Representative was granted a total of 11.5 hours. Complainant’s Representative stated it took him approximately 20 to 26 hours to complete research, file the appeal, and work on the brief in support. The Agency noted, however, that Complainant and Complainant’s Representative made clear that part of the reason for the additional time was that this was the first appeal the Representative had completed. The Agency found that the Representative was granted almost 50 percent more than the recommended amount of time to work on the appeal, which should have sufficed to address his learning curve. Furthermore, the issues in the appeal were not complex. As a result, the Agency found that management granted a reasonable amount of official time to Complainant’s Representative. The instant appeal followed. 0120150144 3 CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency’s failed to consider that the collective bargaining agreement simply provided guidelines and that there should be no arbitrary cutoff at eight hours of official time for an appeal. Complainant contends that each complaint is different and the actual number of hours needed may vary depending on the nature and complexity of the case. Complainant argues that with her Representative being new to the process, it was not unreasonable for him to use at least 20 hours in preparing her appeal brief. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.605(b) provides that if a complainant in the EEO process is an employee of the agency and designates another agency employee as her representative, then the agency will give complainant's representative a reasonable amount of official time to prepare the complaint and to respond to the agency's and EEOC's requests for information. The Commission has held that the right to official time for a representative flows from the complainant being represented and, therefore, a denial of official time for a representative is properly raised by complainant. See Lambert v. Soc. Sec. Admin., EEOC Request No. 05970586 (Oct. 8, 1988). The Commission has also stated that an allegation pertaining to the denial of official time states a separately processable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. The Commission has the authority to adjudicate and remedy a violation of 29 C.F.R. § 1614.605(b) without a finding of discrimination, as the focus of an investigation is not on the motivation of the allegedly offending agency, but strictly on whether the complainant was denied a reasonable amount of requested official time. Edwards v. U.S. Postal Serv., EEOC Request No. 05950708 (Dec. 23, 1996). In the instant case, Complainant’s Representative requested and was initially granted three and one half hours of official time to file Complainant’s appeal. ROI, Ex. 7, at 3. On March 21, 2013, the Representative requested three and one half hours again “to work on appeal.” S1 was advised that it should not take that long to simply complete and file a Notice of Appeal form. ROI, Ex. 14, 1-2. S1 asked for more information so that he could determine whether it was appropriate to approve the request, but the Representative refused to provide it. ROI, Ex. 8, at 4. As a result, S1 denied the request because the Representative did not provide sufficient information in support of the request. Id. Complainant’s Representative subsequently requested four hours of official time each day for April 3 and April 4, 2013 to “complete a brief” in support of the appeal to submit to the Commission. ROI, Ex. 16. S1 approved the request. The record reveals that all of the Representative’s requests for official time were granted except for his request for March 27, 2013. S1 denied the request because the Representative did not provide sufficient information at the time to support the request. The Representative had already been granted three and one half hours of official time to file the Notice of Appeal, 0120150144 4 and his request simply said that he needed time to “work on appeal.” S1 provided the Representative the opportunity to indicate that he intended to file a brief in support of the appeal, but he refused to provide S1 any more information. As a result, S1 was advised that granting the Representative more time to simply file a Notice of Appeal would be unreasonable. The Commission agrees that, based on the circumstances present, management’s denial of this request was reasonable. The Commission notes that the Representative’s additional requests were granted after he informed S1 that he needed the time to file a brief in support of the appeal. The record further supports that Complainant’s Representative was granted at least 11.5 hours of official time to prepare Complainant’s appeal and brief in support. Furthermore, a review of the record reveals that the appeal at issue did not entail particularly complex legal or factual issues. Thus, even considering the Representative’s lack of experience, the Commission declines to find that Complainant’s Representative was denied a reasonable amount of official time. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that Complainant’s Representative was denied reasonable official time. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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), 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. The requests 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 0120150144 5 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 (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 November 1, 2016 Date Copy with citationCopy as parenthetical citation