Roscoe P.,1 Complainant,v.Richard Cordray, Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

2018000042 (E.E.O.C. Feb. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Roscoe P.,1
Complainant,

v.

Richard Cordray,
Director,
Consumer Financial Protection Bureau,
Agency.

Appeal No. 2018000042

Agency No. CFPB00382018

DECISION

Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from an August 28, 2018 Final Agency Decision (“FAD”) dismissing his
complaint of unlawful 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.2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Examiner/CN-60
in Supervision, Southeast Region, in Dallas Texas.

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 This complaint and Agency Case No. CFPB00112018 (infra) were processed and/or
investigated by the United States Postal Service EEO Investigative Services Office
(“NEEOISO”) to avoid conflict of interest, pursuant to 29 C.F.R. 1615.607 and EEOC
Management Directive 110, Ch 1, Sec. I.VC. Likewise, the processing of Agency Case No.
CFPB20140024F (infra) was outsourced to the General Services Administration (“GSA”).

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On August 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to unlawful retaliation for prior protected EEO activity when:

1. on June 22, 2018, he was denied his right to a reasonable amount of Official Time
to pursue his EEO Complaint (Agency Case No. CFPB20140024F) as he received
4 hours of Official Time instead of the 40 hours he requested,

2. on July 11, 2018, he was denied his request to extend or toll the submission
deadline for his EEO appeal brief in Agency Case No. CFPB00112018, and,

3. on an unspecified date, the Agency failed to develop guidelines for managers to
follow when determining reasonable amount of time for employees to work on
their EEO cases.

The allegations in the instant complaint concern Agency Case Nos. CFPB00112018 and
CFPB20140024F, which are both open and pending appellate review by the Commission.3

On June 21, 2018, Complainant received the FAD dismissing his complaint in Agency Case No.
CFPB20140024F. On June 22, 2018, Complainant contacted the relevant EEO officials and
management to request 40 hours of Official Time to prepare an appeal to this Commission, as the
FAD was 48 pages long, and the ROI was 1400 pages. The GSA EEO Case Officer responded
by reminding Complainant that he received the ROI on March 21, 2018, and he submitted his
rebuttal by April 14, 2018. Complainant’s manager responded by providing him with 4 hours on
the afternoon of June 29, 2018, upon his return to the home office after a work-related travel
assignment.

Complainant argues that 4 hours was an unreasonable amount of Official Time to review a 48-
page FAD and a 1400-page Report of Investigation and prepare an Appeal Brief for
CFPB20140024 and CFPB00112018. The Case Officer declined to recommend more Official
Time. On appeal, Complainant argues that the third-party agencies (see footnote 2 of this
decision) assigned to his complaint “meddled in the internal EEO process and recommended to
[Complainant’s Manager] to approve only 4 hours.” Complainant’s requests in multiple emails
the week of July 13, 2018, were declined for an extension to complete his EEO appeal for
Agency Case No. CFPB00112018.

Complainant further argues that the third-party agencies assigned to his cases must “recuse”
themselves. He points out that throughout the processing of CFPB00112018 and
CFPB20140024/F, there was no standardized method to determine what constituted “reasonable”
when responding to a request for Official Time.

3 EEOC Appeal Nos. 2019001482 filed Dec. 3, 2018, and EEOC Appeal No. 0120182412 filed
July 16, 2018.
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The Final Decision determined that Complainant’s allegations amounted to allegations of
dissatisfaction with the processing of previously filed complaints, and dismissed Complainant’s
complaint as an improper “spin-off” complaint, pursuant to 29 C.F.R. §1614.107(a)(8).

ANALYSIS AND FINDINGS

Allegations of dissatisfaction with an agency's processing of a previously filed or pending
complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug.
3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013). Our
guidance further provides that complaints about the processing of existing complaints should be
referred to the Agency official responsible for complaint processing, and/or processed as part of
the original complaint. If no action was taken, the file must contain an explanation of the
Agency's reason(s) for not taking any action. EEO MD-110, supra.

Complainant disputes the characterization of his complaint as allegations of “dissatisfaction”
with the processing of previously filed complaints, arguing that he “was denied reasonable time
to participate in [ongoing] EEO matters.” With respect to Claim 1, we agree with Complainant’s
differentiation between a claim that he was denied Official Time and an allegation of
“dissatisfaction” with the EEO process. However, for Claim 2, Complainant is disputing the
denial of an extension request, which, by definition, concerns the processing a previously filed
complaint.

The allegation in Claim 3 is too broad to constitute an improper “spin-off” complaint or
alternately, state a separate claim of reprisal. Instead, it appears that Claim 3 was offered to
support the allegations in Claims 1 and 2, because it speaks to the “reasonableness” of the
Agency’s decision-making regarding Official Time and extension requests.

Claim 1: Official Time

When a request for official time is denied in whole or part while either OFO or an AJ is
presiding over the matter, a copy of the agency’s denial of official time with the requisite
explanation should be provided to OFO or the AJ. MD-110 at 6-16. Where there is a finding in
the complainant’s favor, “the AJ or OFO may order the agency to restore such personal leave as
the complainant may have used in lieu of official time.” See Tipton v. Dep’t of Transportation,
EEOC Appeal No. 0120020654 (Nov. 3, 2003); citing Pollack v. Dep’t of the Treas., EEOC
Appeal No. 0720010039 (Mar. 8, 2002).

The Agency has not offered evidence that it processed Claim 1 separately from the instant
complaint, including alongside the underlying complaint. See EEOC Appeal No. 0120152244
(Nov. 19, 2015) reconsideration denied EEOC Request No. 0520160118 (Apr. 20, 2016) (finding
that the Agency provided sufficient evidence that it was processing those claims separately
pursuant to 29 C.F.R. § 1614.605, therefore its dismissal of Complainant’s claims that it owed
him Official Time for February 11, 2015, and that his attendance for November 19, 2014 and
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prior occasions was erroneously listed as annual leave or sick leave instead of Official Time was
proper).

Our regulations provide that employees shall have a reasonable amount of official time, if
otherwise on duty, to prepare their complaints and respond to requests for information. See 29
C.F.R. § 1614.605(b). The Commission has the authority to remedy a violation of official time
claims without a finding of discrimination. See Holefield v. United States Postal Serv., EEOC
Appeal No. 0120023840 (Jan. 2, 2003); Edwards v. United States Postal Serv., EEOC Request
No. 05960179 (Dec. 23, 1996) citations omitted. In such cases, the Commission's focus is not
the Agency's motivation, but whether Complainant was denied a reasonable amount of official
time. Therefore, under 29 C.F.R. § 1614.605(b), Claim 1 states a justiciable claim.

We acknowledge that Claim 1 concerns a previously filed complaint. However, the essence of
Claim 1 is whether Complainant was denied a reasonable amount of Official Time. See Genaro
D. v. United States Postal Serv., EEOC Appeal No. 0120152495 (Dec. 2, 2015). It is well
established that when an Agency denies a request for official time, either in whole or in part, it
must include a written statement, deciding on the merits whether Complainant was improperly
denied official time in violation of § 1614.605(b). See Avillan v. United States Postal Serv,
EEOC Appeal No. 0120101801 (Aug. 12, 2010), EEOC Appeal No. 0120141627 (Oct. 9, 2014)
reconsideration denied 0520150070 (Apr. 23, 2015); Unganisha v. Dep’t of the Treas., EEOC
Appeal No. 0120021628 (May 7, 2002).

The GSA EEO Case Officer’s June 22, 2018 email response to Complainant’s request for
Official Time provides an informal explanation, but lacks appeal information. Also, the FAD
does not provide an explanation for granting only 4 hours of Official Time, and there is no
evidence that would otherwise indicate that it is addressing the matter separately. Therefore, we
will remand the matter so that the Agency may investigate complainant's claim that he was
denied official time in violation of § 1614.605(b). Thereafter, the Agency shall issue a decision
on the claim and provide appeal rights to the Commission.

Claim 2: Dissatisfaction with Processing

As previously stated, 29 C.F.R. § 1614.107(a)(8) provides that a complaint alleging
dissatisfaction with the processing of a previously filed complaint must be dismissed. The
allegation in Claim 2, denial of an extension or tolling the deadline to submit a response brief to
an ROI, alleges dissatisfaction with an Agency decision in the processing of Agency Nos.
CFPB20140024 and CFPB00112018, neither of which is the underlying complaint for this
Decision. However, we note that Complainant provides detailed email exchanges indicating that
he timely raised the matter with the proper Agency EEO officials. EEO MD-110 at 5-26. If he
has not done so already, Complainant may submit the allegation in Claim 2, along with
documentation of the Agency’s response, to the Commission for review, in the pending appeal
on the underlying complaint.

CONCLUSION
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Accordingly, the Agency's final decision dismissing Claim 1 is REVERSED, and the Agency’s
final decision dismissing Claims 2 and 3 is AFFIRMED.

Claim 1 is hereby REMANDED for further processing by the Agency in accordance with the
following Order.

ORDER

The Agency, within thirty (30) calendar days of the date of this Decision, shall issue a written
determination on whether or not Complainant was denied a reasonable request for Official Time,
as alleged, to work on EEO-related matters. If Complainant was improperly denied Official
Time, the Agency shall also determine if he took personal leave instead. If so, the Agency shall
reimburse Complainant for any leave that he incurred. A copy of the Agency's determination and
reimbursement action, if necessary, shall be provided to the Compliance Officer as set forth
below.

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
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(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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.

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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

February 8, 2019
Date