01a03310
08-08-2000
Zedie E. Ramage, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Zedie E. Ramage, Jr. v. United States Postal Service
01A03310
08-08-00
.
Zedie E. Ramage, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03310
Agency No. 4H-390-1168-95
Hearing No. 130-99-8232
DECISION
By Notice of Appeal postmarked March 30, 2000, complainant filed an appeal
with this Commission from the February 9, 2000 final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. � 621 et seq.<1> A copy of the
certified mail return receipt card reveals that the FAD was received
at complainant's address of record on February 29, 2000. Accordingly,
the appeal is timely (see 29 C.F.R. � 1614.402(a)), and is accepted in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
On March 23, 1995, complainant filed a complaint of discrimination against
the agency based on race (Caucasian), color (white), religion (Catholic),
sex (male), age (51), national origin (German/French/American), and
reprisal (prior EEO activity and service as an EEO Representative).
He claimed that he had been discriminated against on April 7, 1994,
when the agency denied his request to pay his travel time and expenses
when he was acting in his capacity as an EEO Representative for an agency
employee at an EEOC Administrative Hearing at a location which was not in
his geographical area. The agency accepted the claim for processing and
investigation and complainant subsequently requested a hearing before a
Commission Administrative Judge (AJ). The AJ issued a decision without
a hearing, finding that complainant had not been discriminated against,
and the agency subsequently implemented the decision of the AJ in its
entirety. It is from this decision that complainant appeals.
The record reveals that complainant was employed by the agency as a
Clerk at the Fresno, California Processing and Distribution Center.
The instant complaint arose when complainant was acting in his capacity
as an EEO Representative for an agency employee (CO-1), who had requested
a transfer from the Fresno, California facility to an agency facility in
Tupelo, Mississippi, which was denied. CO-1 filed an EEO complaint on
the denial and an EEOC AJ held a Hearing on the complaint in Jackson,
Mississippi in March 1994. Complainant requested, from the AJ holding
the Hearing for CO-1, official time and travel expenses for attending the
Hearing. The AJ denied that request and told complainant he would have to
take it up at the agency level. Complainant then requested the expenses
from the agency and was again denied. He filed the instant complaint.
ANALYSIS AND FINDINGS
We first note that EEOC Regulation 29 C.F.R. � 1614.605(b) provides:
If the complainant is an employee of the agency, he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare the
complaint and to respond to agency and EEOC requests for information. If
the complainant is an employee of the agency and he designates another
employee of the agency as his or her representative, the representative
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. The agency is not obligated to change work schedules, incur
overtime wages, or pay travel expenses to facilitate the choice of a
specific representative or to allow the complainant and representative to
confer. The complainant and the representative, if employed by the agency
and otherwise in a pay status, shall be on official time, regardless of
the tour of duty, when their presence is authorized or required by the
agency or the Commission during the investigation, informal adjustment,
or hearing on the complaint. (Emphasis added).
Complainant alleged discrimination on several bases when he was denied
travel time and reimbursement for travel expenses in order to attend
an EEO Hearing as a Representative. We find that the more appropriate
analysis is whether complainant was entitled to such under 29 C.F.R. �
1614.605(b). We note in this regard that it is not relevant whether
the agency's action was motivated by improper discrimination, but rather
whether the denial was a violation of the relevant regulation.
We find that the complaint should have been dismissed pursuant to 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(1)), on the grounds of failure to state a claim.
Complainant claimed that he was discriminated against when, while acting
as a representative for a complainant in a separate EEO matter, he was
denied travel time and reimbursement of travel expenses in an unspecified
amount. We find that complainant lacks standing to bring an EEO complaint
that he was denied travel time and reimbursement of travel expenses while
representing another complainant in a separate EEO matter. Such a claim
lies with the complainant, and not his or her representative. See Morman
v. Department of the Air Force, Appeal No. 01964629 (March 17, 1997);
Wildberger v. Small Business Administration, Request No. 05960761 (October
8, 1998); Sessoms v. U.S. Postal Service, EEOC Appeal No. 01973440
(June 11, 1998).
Accordingly, complainant's appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
__08-08-00________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.