01a22278
07-10-2002
Gloria H. Ruff, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria H. Ruff v. United States Postal Service
01A22278
7/10/02
.
Gloria H. Ruff,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22278
Agency No. 1K-221-0071-01
DECISION
Upon review, the Commission finds that the complaint was improperly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated February 14, 2002, complainant
claims that she was subjected to discrimination on the bases of race
(African-American), sex (female), and reprisal for prior EEO activity
when during the week of July 24, 2001 to July 27, 2001, her Supervisor
denied her the right to use Official Time to see her EEO Representative.
The record reveals that complainant filed EEO claims prior to that at
issue in the present case, in which she requested a hearing. As a result,
complainant received a scheduling order requiring her to file numerous
pre-hearing motions. On July 24, 2001, complainant asked her Supervisor
for official EEO on the clock time to meet with her EEO Representative
in order to discuss her scheduling order.
Although the agency states that the Supervisor granted complainant's
request for official time, the record reveals that complainant claims
that her request for official time was denied. Complainant clearly
asserts that as a result of the Supervisor's denial of official time,
from July 24, 2001 to July 27, 2001, complainant had to meet with her EEO
Representative during his lunch break, her break time, and after the EEO
Representative got off work. Moreover, complainant claims the two hours
of her personal time she spent during her breaks to meet with the EEO
Representative should have been granted by the Supervisor as official
on the clock time. Complainant also contends that the Supervisor has
a history of denying employees official time which has contributed to
a hostile work environment because employees do not have opportunity to
pursue EEO claims.
In its final decision, the agency dismissed the complaint for failure to
state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant asserts that she was discriminated against when she was denied
official time. EEOC Regulation 29 C.F.R.� 1614.605(b) provides that if
the complainant is an employee of the agency, he or she shall be given a
reasonable amount of official time, if otherwise on duty, to prepare the
complaint and to respond to agency and EEOC requests for information.
The regulation further provides that if the complainant is an employee
of the agency, and designates another agency employee as his or her
representative, then the agency will give the complainant's representative
a reasonable amount of official time to prepare the complaint and respond
to 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. United States Postal
Service, EEOC Request No. 059605179 (December 23, 1996).
Complainant asserts that she was discriminated against because of a
pattern of harassment and retaliation by the Supervisor who has a record
of denying employees official time. 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 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. Id.
Complainant contends that because of her race, sex, and retaliation
for her meeting with the EEO Representative about previous claims,
the Supervisor refused her official time. Complainant's claim that the
Supervisor denied her official time is a processable claim that harms
complainant in the terms and conditions of her employment. However,
because there is a dispute in the record as to whether in fact complainant
was denied official time, the Commission believes the dispute is best
addressed after an investigation.
Consequently, in the present case, the Commission finds that the agency's
dismissal of the complaint was in error. A determination must now be
made whether complainant was improperly denied a reasonable amount of
official time. Accordingly, the agency's decision is hereby REVERSED.
The complaint is REMANDED for further processing in accordance with the
Order below.
ORDER
The agency shall take the following actions:
(1) The agency shall investigate the issue of whether complainant was
denied a reasonable amount of official time. The agency shall include in
the record documentation showing how much time was requested, for what
stated purpose, how much time was granted, if any, and the justification
for the denial of any requested time;
(2) The agency shall notify complainant of the opportunity to place
into the record any evidence supporting her claim that she was denied
a reasonable amount of official time; and
(3) The agency, within 60 calendar days of the date this decision becomes
final, shall issue a decision as to whether complainant was denied a
reasonable amount of official time. The agency's decision shall provide
appeal rights to this Commission.
A copy of the decision must be sent 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
7/10/02
Date