Gloria H. Ruff, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 10, 2002
01a22278 (E.E.O.C. Jul. 10, 2002)

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