0120111215
09-06-2013
Linda R. Fulton, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Linda R. Fulton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111215
Agency No. 4C440001710
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 29, 2010, dismissing her complaint 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. The Commission AFFIRMS the Agency's final decision for the following reasons.
ISSUE PRESENTED
The issue presented is whether the Agency allowed Complainant a reasonable amount of official time to meet with her EEO representative and work on her EEO complaint.
BACKGROUND
In her complaint dated January 13, 2010, Complainant alleged that the Agency subjected her to discrimination on the bases of race, national origin, sex, and reprisal for prior protected EEO activity, when: (1) on November 14, 2008, her route was improperly adjusted, which continues to date; and (2) she was denied official time to meet with her representative on January 7, 2010. The Agency dismissed claim (l) pursuant to 29 C.F.R. � 1614.l07(a)(2) for untimely EEO Counselor contact. With regard to claim (2), the Agency determined that Complainant should have brought her claim of being denied official time to the attention of the Agency official responsible for the quality of complaint processing. The Agency provided Complainant with an address for the appropriate Official in its decision without further comment.
In Fulton v. United States Postal Service, EEOC Appeal No. 0120101684 (August 11, 2010), the Commission affirmed the dismissal of claim (1) for untimely EEO Counselor contact. With respect to claim 2, however, the Commission ruled that the evidentiary record was not sufficiently developed enough to determine whether Complainant was given a reasonable amount of official time to prepare her complaint with assistance from her EEO Representative. Therefore, this claim was remanded to the Agency for further information. The Agency was also ordered to issue a new final decision (FAD) in response to the Commission's Order.
In its new FAD, the Agency maintained that it did not deny Complainant official time. The Agency explained that Complainant failed to follow the proper procedures for requesting official time. With regard to her January 7, 2010, request, Complainant placed a PS Form 3996 (Carrier-Auxiliary Control), on the supervisor's desk and said nothing to the supervisor. The form indicated that she needed one hour of time to meet with her EEO representative on January 11, 2010. The supervisor found the form on January 7th. According to the supervisor, January 11, 2010, being a Monday, was a heavy mail volume day and therefore, she could not accommodate Complainant. Due to other conflicts, January 20th was the first available day that she, the supervisor, could schedule Complainant for official time. On January 14th, she granted Complainant two hours of official time for January 20, 2010. According to the Agency, Complainant did not advise the supervisor that she needed the time in order to file her EEO complaint within the 15 calendar day limitation period. The Agency also maintained that Complainant had previously been instructed, both in writing and during meetings, of the need to discuss with management the reasons for a request for official time and to not make the request on a PS Form 3996.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the forms that the Agency wanted her to use are discriminatory because they are not postal forms and no one else is required to use them. As a result of the Agency's practices, Complainant requests two hours of overtime beginning on November 14, 2008 when management first began denying her official time and ending January 20, 2010.
The Agency maintained that Complainant's arguments regarding management's request that she use a certain form to request official time are without merit. The Agency contends that MD-110 allows agencies to develop methods to use by which employees may request official time. Moreover, management indicated that Complainant and her representative used the two hours she received on January 20, 2010; therefore, she is not entitled to any additional time.
ANALYSIS AND FINDINGS
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. Bryant v. Dep't. of Treas., EEOC Appeal No. 0120065274 (Feb. 25, 2009) (citing Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996)). Therefore, the Commission has the authority to remedy a violation of 29 C.F.R. � 1614.605 without a finding of discrimination." Id.
The evidentiary record shows that Complainant requested official time on January 7, 2010, by placing a form on her supervisor's desk even though she had been instructed to not submit requests in that manner. According to the supervisor, she discovered the form that day but could not approve time for January 11th, because of the heavy mail volume on Mondays. Because of other conflicts, the first available day that official time could be scheduled was January 20, 2010. We find no evidence that Complainant told her supervisor that she was near the 15-day time limitation period for filing her complaint and that it was essential that she be allowed to meet with her representative on January 11, 2010. The record indicates that Complainant was able to complete the forms on her own time and therefore did not miss the filing deadline. The Agency provided a plausible explanation for why official time was not approved for January 11, 2010. Also, the record shows that Complainant did take the two hours of official time that was approved for January 20, 2010. Accordingly, we find that she has not demonstrated that she is owed additional time for the period at issue here.
Further, with respect to Complainant's contentions on appeal, Complainant submitted no evidence showing that she was the only employee required to use the forms that were designated by management. Her actions indicate that although she was aware of management's preference, she simply refused to use said form. Finally, with regard to her request that she be given overtime pay to compensate for alleged violations of the regulation's official time provision in the past, we find that, even assuming arguendo that she had established that violations had occurred prior to January 2010, her proposed remedy would not be in accordance with the prior precedent cited above.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency FAD which found that Complainant was not denied reasonable official time.
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 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 (S0610)
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 (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 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
___9/6/13_______________
Date
2
01-2011-1215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013