0120081760
02-17-2011
Carolyn Maddox, Complainant, v. Patrick r. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Carolyn Maddox,
Complainant,
v.
Patrick r. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120081760
Agency No. 4G-870-0065-06
DECISION
On February 24, 2008, Complainant timely filed an appeal from the
Agency's January 28, 2008, final decision concerning her equal employment
opportunity (EEO) 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
The Commission REVERSES and REMANDS the Agency's final decision for the
reasons that follow.
ISSUE PRESENTED
The issue presented is whether the Agency allowed Complainant a reasonable
amount of official time to meet with her EEO representative and work on
her EEO complaint.
BACKGROUND
On June 6, 2006, Complainant filed a formal EEO complaint in which she
alleged she was harassed on the basis of race (Black), color (black),
sex (female), and age (52) when, from March 1, 2006, up to the date she
filed her complaint, her manager (Manager) stared at Complainant for
long periods of time and subjected her to verbal abuse and humiliation
on the workroom floor, humiliated Complainant in front of customers, and
pointed her finger at Complainant while another supervisor was present
(Claim 1), and denied a reasonable amount of official time to meet
with her EEO representative and work on her EEO complaint (Claim 2).
On June 22, 2006, the Agency dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
Complainant appealed the Agency's dismissal to the Commission, which
ruled that Claim 1 was properly dismissed because it did not state a
claim. Maddox v. U.S. Postal Serv., EEOC Appeal No. 0120064400 (January
10, 2007). The Commission also ruled, however, that the evidentiary
record was not sufficiently developed to issue a finding on Claim 2,
that is, to determine whether Complainant was given a reasonable amount
of official time to prepare her pre-complaint form with assistance from
her EEO Representative. Id. Therefore, this aspect of Complainant's
claim was remanded to the Agency for further information.
Specifically, the Commission ordered the Agency to supplement the record,
in relevant part, with (a) information showing how official time was
requested, and (b) for what stated purpose, (c) how much time was granted,
if any, and (d) the justification for the denial of any requested time.
The Commission informed the Agency that, upon supplementing the record
with items (a) through (d), it must issue a final agency decision as
to whether Complainant was denied a reasonable amount of official time.
The Agency supplemented the record with the requested information and,
on January 29, 2008, issued a decision in which it found that Complainant
was not denied reasonable official time. Complainant thereafter filed
the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant, cites the Commission' EEO Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999), where it states "the
[C]omplainant and the [A]gency should arrive at a mutual understanding as
to the amount of official time to be used prior to the [C]omplainant's
use of such time ...." She then contends that she and the Agency had
reached a mutual understanding from which it was agreed that she would
be given two and one-half hours to prepare her pre-complaint but that the
Agency changed course, allowing her only 15 minutes instead. The Agency
requests that we affirm its final decision. Complainant's contentions
go to the merits of her allegation, and as such, are inherently addressed
in the findings below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEO MD-110 at
Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard
of review "requires that the Commission examine the record without
regard to the factual and legal determinations of the previous decision
maker," and that EEOC "review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
The Commission has stated that an allegation pertaining to the denial of
official time states a separately processable claim alleging a violation
of the Commission's regulations, without requiring a determination
of whether the action was motivated by discrimination. Bryant
v. Dep't. of Treas., EEOC Appeal No. 0120065274 (Feb. 25, 2009)
(citing Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23,
1996)). Therefore, the Commission has the authority to remedy a violation
of 29 C.F.R. � 1614.605 without a finding of discrimination." Id.
The evidentiary record shows that Complainant requested by faxed letter
and hand-delivered document two and half hours of official time to prepare
her pre-complaint form and meet with her EEO Representative on April 23
and 24, 2006, respectively. It also shows that Complainant's supervisor
(Supervisor) received and granted Complainant's request, and scheduled
12:30 - 3:00 p.m. on April 26, 2006, as the period Complainant was to
meet with her EEO representative and receive assistance in working on
her EEO complaint.
According to the Agency's final decision, the Manager1 indicated
that she discussed Complainant's request with the EEO Office and was
informed that anywhere between 15 to 20 minutes is a reasonable amount
of time to meet with an EEO counselor because the Complainant would be
interviewed and have the opportunity to be more specific at a later time.
See Agency's January 29, 2008, Final Decision at 1. The final decision
also indicates that once receiving this information from the EEO Office,
the Manager granted Complainant and her representative 15 minutes each
to complete a request for counseling form because, based on the Agency's
operational needs that day, that is what she was able to grant. Finally,
the final decision indicates that the Manager stated that all employees
making such requests have been treated the same way and her decision
was in no way meant to deny Complainant any of her rights.
We note that the Manager's statements were not a part of the evidentiary
record.2 In light of this fact, and the final decision's assertion
that it was Agency policy to inform all field managers that 15 to 30
minutes is a reasonable amount of official time, we find the Agency's
justification for allowing Complainant only 15 minutes of reasonable
time to be suspect. First, there is no explanation why the Agency
chose to allow Complainant 15 minutes of official time after she had
already been approved and scheduled for 2 and one-half hours. Second,
a telephone call from the Manager to the EEO office to determine what
was reasonable is not consistent with the Manager's statement that all
employees making such requests were treated the same or the Agency's
assertion that there exists some policy which advises managers that 15
to 30 minutes is reasonable. We therefore find that Complainant was
not allowed an official amount of reasonable time.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the Agency
violated Commission requirements when it denied Complainant official time.
We hereby REVERSE and REMAND the final agency decision; the Agency shall
take action consistent with this decision and the Order below.
ORDER
Within sixty (60) calendar days of the date on which this decision
becomes final:
1. The Agency is ORDERED to require that all its Managers and Supervisors
at the Highland Station Post Office in Albuquerque, New Mexico read and
affirm that they understand the process for requesting official time,
as explained in EEO Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110) and 29 C.F.R. � 1614.605.
2. The Agency is also ORDERED to determine whether Complainant
subsequently took leave as a result of being denied official time to
work on her EEO complaint in April or May 2006. If so, the Agency shall
reimburse Complainant for any leave that she may have taken, or in the
event Complainant took leave without pay, shall reimburse Complainant
for the wages forgone for those hours.
3. The Agency shall submit a report of compliance, as provided in the
statement entitled "Implementation of the Commission's Decision." The
report shall include evidence that the corrective action has been
implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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, Director
Office of Federal Operations
February 17, 2011
Date
1 This individual is the official named in the initial complainant as
the perpetrator of discrimination and the one who ultimately decided
to allow Complainant's only 15 minutes of official time with her EEO
representative.
2 We gained our knowledge of what the Manager allegedly stated from the
final decision.
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0120081760
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081760