0120122687
10-18-2017
Darrin F.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, D.C. 20013
Darrin F.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122687
Hearing No. 450-2012-00056X
Agency No. P-2011-001205
DISMISSAL OF APPEAL
On June 11, 2012, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's May 10, 2012, final order concerning a proposed class complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission DISMISSES the appeal.
ISSUE PRESENTED
The issue presented is whether the appeal should be dismissed because the underlying subject matter of the class complaint, i.e., the denial of official time, should not have been processed as a discrimination complaint.
BACKGROUND
Complainant worked as a Food Service Foreman at the Agency's Federal Correctional facility in Seagoville, Texas. On November 16, 2011, Complainant filed a class complaint alleging that the Agency discriminated against him and others on the bases of sex (male), disability (mental/physical), and in reprisal for prior protected EEO activity when he was denied official time.
Complainant did not identify any disabilities, and alleged that he and other employees were being subjected to retaliation by the Warden. He cited, however, only one incident in his formal complaint, which occurred on October 13, 2011. He alleged that on that day his two hours of official time were cut short. Specifically, Complainant indicated that, on October 12, 2011, a formal memorandum was presented to the acting Associate Warden (AW) of Operations requesting two (2) hours official time for himself and a co-worker, CA2, for a teleconference with an EEO Counselor about their formal class complaint. Complainant stated that the memorandum was provided to AW twenty-four (24) hours in advance with copies to the supervisors of both Complainant and CA2. At approximately 1:20 pm., on October 13, 2011, during the EEO teleconference, the Human Resources Manager informed Complainant that he needed to call his supervisor because he was looking for Complainant. She also stated the supervisor was unaware that Complainant had requested the official time from AW. Complainant maintained that he was instructed to report back to his job and was not allowed to complete the EEO teleconference. 2
The complaint was forwarded to an Equal Employment Opportunity Commission Administrative Judge (AJ) to determine whether to certify the class. The AJ determined that the complaint did not meet the criteria for certification as a class complaint because there was no indication that the class was so numerous that a consolidated complaint of the members of the class was impractical; or that there were questions of fact common to the class; or that the claims of the class agent were typical of the claims of the class; or that the class agent would fairly and adequately protect the interest of the class.
Accordingly, the AJ denied class certification because the class complaint did not meet the elements of numerosity, commonality, typically and adequacy of representation. The Agency issued a final order accepting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant did not provide a brief.
The Agency maintains that the AJ's finding should be affirmed. The Agency also notes that pursuant to 29 CF.R. � 1614.204(7), if an Agency dismisses a class complaint, the Agency must process the complaint as an individual complaint or dismiss it for any of the reasons stated in 29 C.F.R. � 1614.107. Consequently, the Agency argues that Complainant's and CA2's individual complaints should be dismissed because the issues identified by each are already being processed in pending EEO complaints or do not state claims.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.605(b) states, in relevant part, "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 Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. Equal Employment Opportunity Commission Management Directive 110 (MD-110), Chap. 6 � VII.C. Therefore, an agency may restrict the overall hours of official time afforded. Id. The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulation and does not require a determination of whether the denial was motivated by discrimination. In Edwards v. United States Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996), the Commission held that such a claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Edwards, supra.
We find no persuasive evidence that Complainant was ultimately denied official time here. Complainant submitted his request the day before he needed the time. Although he assumed his supervisor was aware of his request, the record indicates that this was not the case. Complainant's time with the counselor was cut short on October 13, 2011, but we find no persuasive evidence that Complainant was unable to confer with the EEO counselor. In this regard, we note that he received the Notice of Final Interview along with an offer of assistance in completing the formal complaint on November 4, 2011. He filed the formal complaint on November 15, 2011. We find no indication that the events on October 13th, had any effect on his ability to subsequently confer with the EEO counselor and to file his formal complaint. Nevertheless, in accordance with Commission precedent, we find that the underlying claim in this complaint should not have been processed as either a class or individual complaint of discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant's appeal should be DISMISSED because his claim that he was denied two hours of official time is not a proper matter for processing pursuant to 29 C.F.R. 1614.108 et seq.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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:
______________________________ Bernadette B. Wilson's signature
Carlton M. Hadden, Director
Office of Federal Operations
_10/18/17_________________
Date
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.
2 In the EEO Counselor's report, Complainant discussed additional incidents of alleged discrimination, which included being charged absent without leave (AWOL), denial of leave, and a demotion of CA2. For the most part, the incidents described in the EEO Counselor's report were matters that were already the subject of EEO complaints filed against the Agency by Complainant and CA2.
3 As was noted above, Complainant sought EEO counseling on several matters, however, the only issue that was raised in the class complaint was the allegation that he was denied official time on October 12, 2011. Therefore, we will not address the issues that were not included in the formal complaint nor will we remand them for individual processing.
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