01A11131_r
08-15-2002
Patrick W. Zych, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Patrick W. Zych v. Department of the Air Force
01A11131
August 15, 2002
.
Patrick W. Zych,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11131
Agency No. 9V1M00605
DECISION
Complainant initiated contact with an EEO Counselor on August 8, 2000.
On September 27, 2000, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the bases of his race
(Caucasian) and in reprisal for his previous EEO activity under Title
VII when he was not granted official time for his EEO activities.
In its decision, the agency dismissed the complaint on the grounds of
failure to state a claim. The agency determined that complainant failed
to provide specific information as to when he was denied official time.
The agency noted that complainant did not state in his letter requesting
official time whether his EEO activities were personal to him or in his
capacity as a personal representative. The agency further noted that
complainant never stated that his request for official time was denied.
The agency determined that complainant failed to claim personal harm as
a result of management's actions or inaction.
On appeal, complainant contends that the agency did not respond to his
requests for official time. Complainant maintains that he provided
sufficient information regarding all EEO meetings and official requests
for information to his supervisor. According to complainant, his requests
for official time concerned his personal EEO activity and his capacity
as a personal representative for other employees. Complainant states
that on July 19, 2000, he became aware that a coworker had been granted
official time by his supervisor to attend an EEO meeting.
Upon review of the record, we observe that complainant contends that
his requests for official time pertained to EEO activities on behalf
of himself and as a representative for other EEO complainants. The
Commission has held that the right to official time for a representative
flows from the complainant, and therefore, a denial of official time
for a representative is properly raised by the complainant, and not
the representative. Lambert v. Social Security Administration, EEOC
Request No. 05970586 (October 8, 1998). Therefore, we find that where
complainant acted as a representative on behalf of another individual, he
does not have standing to raise the issue of being denied official time.
Complainant has stated a claim with regard to the official time that he
allegedly was not granted for his personal EEO activity. The Commission
notes that 29 C.F.R. �1614.605(b) provides that �if the complainant is
an employee of the agency, he or she 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.� 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. The Commission
held that such a claim should not be processed in accordance with 29
C.F.R. �1614.408, since the focus is not on the motivation, but rather
the justification on why the complainant was denied a reasonable amount
of official time. A determination must now be made whether complainant
was improperly denied a reasonable amount of official time. The record
does not contain sufficient information for such a determination. If the
agency needs to clarify what dates of alleged denials of official time are
in question, the agency should contact complainant for such clarification.
Therefore, we shall remand the matter so that the agency may issue a
determination regarding complainant's claim of a denial of official time
for his personal EEO activity.
The agency's dismissal of the portion of the instant complaint concerning
complainant's request for official time as an EEO representative
is AFFIRMED. The agency's dismissal of the portion of the complaint
concerning complainant's request for official time for his personal EEO
matters is REVERSED and we REMAND this matter to the agency for further
processing pursuant to the Order below.
ORDER
The agency shall take the following actions:
The agency shall investigate the issue of whether complainant was
denied a reasonable amount of official time with regard to his personal
EEO activity. 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;
The agency shall notify complainant of the opportunity to place into the
record any evidence supporting his claim that he was denied a reasonable
amount of official time; and
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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, Director
Office of Federal Operations
August 15, 2002
__________________
Date