01a31552
07-09-2003
Eugene Bledsoe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene Bledsoe v. United States Postal Service
01A31552
July 9, 2003
.
Eugene Bledsoe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31552
Agency No. 4-J-600-0007-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated December 5, 2002, dismissing his complaint of
unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq.
In his formal complaint, filed on October 22, 2002, complainant claimed
that he was the victim of unlawful employment discrimination on the
bases of race (African-American) and in reprisal for prior EEO activity,
concerning the agency's failure to pay him for his attendance at an EEOC
hearing. Specifically, complainant contends that an EEOC Administrative
Judge required his attendance at a bench decision on September 16, 2002,
but that because of a � mix-up,� complainant used two hours in excess of
those previously approved for his attendance. According to complainant,
he was in an out-of-schedule overtime status at the time of his hearing
attendance, and should be paid for the two additional hours based on
this status. Complainant claimed that when he returned to work and
submitted a Form 3971 to request this pay, he was initially told that he
could not be paid for this time. Complainant claimed that the agency
representative from the hearing refused to approve the payment for the
two additional hours as a retaliatory gesture.
The agency dismissed the complaint, finding that it was a spin-off claim.
The agency also found that it ultimately approved the payment requested
by complainant on October 4, 2002. The agency found, however, that
complainant refused to sign the authorization form because he had already
filed the instant EEO complaint.
Analysis and Findings
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal of
spin-off complaints, which are complaints about the processing of existing
complaints. It 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.
Here, we find that complainant's claim alleging the agency's failure to
pay him for the two additional hours he spent in attendance at an EEOC
hearing is not a �spin-off� complaint, but is instead more properly
viewed as a per se violation of the regulations. EEOC Regulation 29
C.F.R. � 1614.605(b) provides, in pertinent part, that if a complainant is
otherwise in pay status, the agency shall consider him to be on official
time, regardless of tour of duty, when his presence is authorized or
required by the agency or the Commission during the investigation,
informal adjustment, or hearing on a complaint. Therefore, we find
that the instant complaint concerns the agency's failure to comply with
this provision of 29 C.F.R. � 1614.605(b), thereby constituting a per
se violation of this regulation.
Review of the record reveals documentary evidence that the agency
approved payment to complainant for the two hours at issue on October
4, 2002. Therefore, notwithstanding complainant's refusal to sign
the authorization form, which does not negate the fact that the agency
ultimately approved his request for payment of the two hours at issue,
we find that the agency has cured its prior violation of the regulation
29 C.F.R. � 1614.605(b). We note, however, that it is unclear whether
complainant ultimately received the payment, due to his refusal to
sign the authorization form. Therefore, we hereby VACATE the agency's
decision and REMAND this matter to the agency for further processing in
accordance with the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final
the agency shall supplement the record with evidence that complainant has
been paid for the two hours at issue. The agency shall submit evidence
of such payment to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must 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 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 (R0900)
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 (Z1199)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2003
__________________
Date