Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120112169 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.

Appeal No. 0120112169

Agency No. 4H-330-0187-10

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated February
18, 2011, concerning her Complainant 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.
For the following reasons, the Commission REVERSES the Agency’s final decision.

BACKGROUND

On January 10, 2011, Complainant initiated contact with the Agency’s EEO Office alleging
that the Agency subjected her to discrimination on the basis of race (African-American) when:
on December 21, 2010, Complainant requested to be compensated for her prior EEOs;
however, the Agency denied her request.

The Agency issued a decision on Complainant’s request for official time on February 18,
2011. The Agency noted that Complainant participated in REDRESS mediation on a prior
EEO complaint on May 4, 2010. The Agency stated that Complainant was not provided with
additional time or assistance on May 4, 2010, when the REDRESS mediation was held.
However, the Agency determined that Complainant’s claims were untimely. Specifically, the
Agency stated that Complainant failed to contact an EEO Counselor within 45 days of May 4,
2010.

On appeal, Complainant argues the time to collect payment for services rendered never
expires. Complainant states she has never been compensated for any of her EEOs. She claims
that she was told by management that compensation for the EEO process was included in her
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evaluated time and thus, she was denied payment. She explains that it was not until a fellow
employee was given relief assistance that she realized that she was due payment.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.605(b) provides that if a 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 the Agency and EEOC requests for information. 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. See Edwards
v. U.S. Postal Service, EEOC Request No. 05960179 (December 23, 1996). Essentially, the
Commission has held that it has the authority to remedy a violation of 29 C.F.R. § 1614.605
without a finding of discrimination. Id. The Commission has held that such a claim should
not be processed in accordance with 29 C.F.R. § 1614.108, since the focus is not on the
motivation, but rather the justification of why the complainant was denied a reasonable amount
of official time.

In the present case, Complainant made her request for official time on December 21, 2010.
The record reveals she exhibited an intent to begin the EEO process on January 20, 2011,
which was within the applicable 45-day limitation period set forth in 29 C.F.R. §1614.105(a).
Thus, we find the Agency improperly dismissed her complaint for untimely EEO Counselor
contact.

CONCLUSION

Accordingly, the Agency’s final decision is REVERSED and the complaint is REMANDED to
the Agency for further processing in accordance with the Order herein.

ORDER

The Agency shall take the following actions:

1. Within 15 days of the date this decision becomes final, the Agency shall contact
Complainant to clarify her claim that she was denied official time by providing details
of the alleged denial including when it happened and who denied official time.
Complainant shall also provide any evidence in support of her claim. Complainant
must provide this information to the Agency within 15 days of receipt of the Agency’s
request.

2. Thereafter, within 60 days of the date this decision becomes final, the Agency shall
issue a decision, with appeal rights to the Commission, as to whether Complainant was
denied a reasonable amount of official time regarding the matters raised in her
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complaint. If the Agency determines that Complainant was denied a reasonable amount
of official time, it shall restore any leave due Complainant.

3. A copy of the Agency’s decision must be submitted to the Compliance Officer as
referenced herein.

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 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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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
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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

June 14, 2013
Date