Zedie Ramage, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01984981 (E.E.O.C. Jan. 21, 1999)

01984981

01-21-1999

Zedie Ramage, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Zedie Ramage, Jr. v. United States Postal Service

01984981

January 21, 1999

Zedie Ramage, Jr., )

Appellant, )

)

v. ) Appeal No. 01984981

) Agency Nos. 1F-937-1016-96

William J. Henderson, ) 1F-937-1061-95

Postmaster General, ) Hearing Nos. 370-97-X2235

United States Postal Service, ) 370-97-X2236

(Pacific/Western Region), )

Agency. )

______________________________)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of race (Caucasian),

national origin (German/French/American), color (white), sex (male),

reprisal (prior EEO activity and service as EEO Representative), and

age (date of birth, September 17, 1942), 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 (ADEA), as amended,

29 U.S.C. � 621 et seq. Appellant alleges he was discriminated against

when he was denied official time<1> by the agency to confer with and

assist various complainants in the processing of their EEO complaints.<2>

For the following reasons, appellant's appeal is DISMISSED.

The record reveals that during the relevant time, appellant was employed

as a PS-05 Clerk at the agency's Fresno, California Processing and

Distribution Center. On a number of occasions in 1995 and 1996,

appellant requested, and was denied, official time to process the

complaints of various agency employees at facilities other than where

appellant was stationed. None of appellant's requests for official time

involved requests where his presence was authorized or required by the

agency or Commission, but rather involved appellant, in his capacity as

EEO representative, to assist complainants with the processing of their

complaints. Believing he was a victim of discrimination, appellant sought

EEO counseling and, subsequently, filed a series of formal complaints

in 1995 and 1996, which were consolidated for two investigations.

At the conclusion of the investigations, appellant received a copy

of the investigative reports and requested a hearing before an EEOC

Administrative Judge (AJ). The cases were consolidated for a single

hearing, and pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a

Recommended Decision (RD) without a hearing, finding no discrimination.

The AJ concluded that appellant failed to establish a prima facie case

of discrimination or retaliation because he failed to demonstrate that

similarly situated employees not in his protected classes were granted

official time to represent EEO claimants when he was not. The agency's

FAD adopted the AJ's RD. On appeal, appellant sets forth a number of

arguments in support of his contention that the FAD was erroneous as a

matter of law. The agency contends that its decision was not erroneous,

and requests that we affirm its FAD.

After a careful review of the record, we conclude that pursuant to the

Commission's recent holding in Sessoms v. United States Postal Service,

EEOC Appeal No. 01973440 (June 11, 1998), appellant lacks standing

to bring an EEO complaint that he was denied official time. Such a

claim lies with the complainant, and not his or her representative. Id.

With respect to the proper forum for such complaints, the Commission

has previously advised complainants and agencies that: " ..., normally,

questions concerning the appropriateness of the disqualification of a

representative or the broad denial of official time to work on particular

cases should be directed to the Director of the Complaints Adjudication

Division within the Federal Sector Program of the Office of Federal

Operations at the Commission." Morman v. Department of the Air Force,

EEOC Appeal No. 01964629 (March 17, 1997). Accordingly, we hold that

appellant's appeal respecting the denial of official time is dismissed

on the procedural ground that he lacks standing to bring such a claim.

Id. See also Sessoms, supra. Therefore, after reviewing the entire

record, including appellant's arguments on appeal and the agency's

response, the appellant's appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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.

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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.F.R.). 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:

Jan 21, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 We note that appellant used the term "travel time" in his various

complaints. A closer analysis reveals that appellant was requesting

official time to represent EEO complainants.

2 We note that this decision is being issued in conjunction with two

related appeals: Schneider v. United States Postal Service, EEOC Appeal

No. 01974464 and Ramage v. United States Postal Service, EEOC Appeal

No. 01977032.