01984804
07-19-2000
Karen L. Elliott, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Pacific/Western Region, Agency.
Karen L. Elliott v. United States Postal Service
01984804
July 19, 2000
.
Karen L. Elliott,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Pacific/Western Region,
Agency.
Appeal No. 01984804
Agency No. 4F-950-1229-94
Hearing No. 370-97-X2198
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405). Complainant
alleges she was discriminated against on the bases of national origin
(English/Welsh/Irish), race (Caucasian), religion (Protestant), color
(White), sex (female), age (57), physical disability (unspecified)
and in reprisal for prior EEO activity, when she was denied reasonable
official time as an EEO representative. For the following reasons,
the Commission affirms the agency's final decision.
BACKGROUND
The record reveals that complainant, a CFS clerk and EEO Representative at
the agency's Fresno Processing and Distribution Center, filed a formal EEO
complaint with the agency on September 26, 1994, alleging that the agency
had discriminated against her as referenced above. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ).<2> Following a hearing, the AJ issued a recommended decision
without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case for any of the bases of discrimination. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
EEO representatives not in her protected classes were granted more
official time to prepare for similar EEO matters. As a result, the AJ
concluded that complainant failed to exhibit a genuine issue of material
fact regarding the agency's action and recommended a finding of no
discrimination or retaliation. The agency's final decision adopted
the AJ's recommended decision. On appeal, complainant makes no new
contentions, and the agency requests that we affirm its final decision.
ANALYSIS
Initially, we note that while the AJ correctly analyzed complainant's
claim of disparate treatment regarding denial of official EEO
representative time, the decision failed to analyze the independent
official time issue. EEOC Regulation 29 C.F.R. � 1614.605(b) provides
that if the complainant or his or her representative is an employee of the
agency, the individual shall have a reasonable amount of official time,
if otherwise on duty, to prepare the complaint and to respond to agency
and EEOC requests for information. In this regard, it is not relevant
whether the agency's action was motivated by discrimination or reprisal,
but whether the agency's action violated 29 C.F.R. � 1614.605(b).
The appropriate analysis focuses on if the agency failed to provide a
�reasonable amount� of official time. Edwards v. United States Postal
Service, EEOC Request No. 05950708 (October 31, 1996). "Reasonable" is
defined as whatever is appropriate, under the particular circumstances
of the complaint, in order to allow a complete presentation of the
relevant information associated with the complaint and to respond to
agency requests for information. The actual number of hours to which
complainant and his or her representative are entitled will vary,
depending on the nature and complexity of the complaint and considering
the mission of the agency and the agency's need to have its employees
available to perform their normal duties on a regular basis. See EEOC
Management Directive (MD) 110, as revised, November 9, 1999 at 6-15.
In this case, we find complainant failed to prove that the agency refused
to provide her with reasonable official time for EEO representation.
The record reflects that complainant received eight (8) hours and
forty-seven (47) minutes of official time for the matter in question.
Other than merely asserting that the amount was insufficient, complainant
neglects to explain why this amount was insufficient or how much time
would be reasonable to complete the necessary task. Without providing
such basic information, we conclude that complainant cannot establish
that the agency violated 29 C.F.R. � 1614.605(b). Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision as explained above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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, Acting Director
Office of Federal Operations
July 19, 2000
Date 1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2 The investigation report indicated that complainant failed to timely
respond to the request for an affidavit. As a result, the record was
submitted without an affidavit from complainant.