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.