01A13596_r
09-26-2002
Peter G. Nagurny, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Peter G. Nagurny v. Department of Justice
01A13596
September 26, 2002
.
Peter G. Nagurny,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A13596
Agency No. M01-0009
DECISION
On April 27, 2001, complainant timely filed an appeal with the
Commission from a final agency decision dismissing his complaint of
unlawful discrimination on the basis of reprisal for prior EEO activity
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. In his complaint, complainant
alleged that the agency discriminated against him in reprisal for
prior EEO activity when it denied him all the official time that he had
requested to prepare his EEO complaints.
In its final decision, the agency dismissed complainant's complaint as
failing to state a claim and moot. Specifically, the agency found that
the matter contained in complainant's complaint did not render complainant
aggrieved under EEO Regulations. Moreover, the agency found that the
same matters contained in the instant complaint were settled through a
previous mediation process. Finally, the agency found that the placement
of complainant on approved administrative leave status after the enactment
of the mediation agreement renders the instant complaint moot.
On appeal, complainant maintains he was aggrieved and his complaint
states a claim under EEO Regulations.
The instant matter is controlled by the decision in Edwards v. USPS,
EEOC Request No. 05960179 (December 23, 1996). In Edwards, complainant
alleged that he was discriminated against in retaliation for prior EEO
activity when he was denied official time. The Commission noted 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 held that it had
the authority to remedy a violation of 29 C.F.R. �1614.605 without a
finding of discrimination. The Commission held that such allegations
of a regulation violation 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 on whether the complainant was denied a reasonable
amount of requested official time.
In his formal complaint, complainant stated that on August 22, 2000, he
requested 24 hours of official time to prepare three EEO complaints.
On November 14, 2000, complainant sent an additional request for
an additional 15 hours. On or about December 2, 2000, the agency
notified complainant that it approved only 16.5 hours of official time.
Complainant contends that the agency's denial is unreasonable in light
of the three complaints he had to prepare.
However, upon review, the Commission is unable to determine whether
the 16.5 hours of official time granted by the agency was a reasonable
amount to allow complainant to respond to agency requests for information
and prepare his complaints. We note, for example, that in his formal
complaint, complainant stated that he requested 24 hours of official
time; and thereafter requested an additional 15 hours on November 14,
2000; however, pre-complaint documents reflect that complainant requested
a total of 41.5 hours of official time to prepare his complaints.
Further, although complainant's complaint makes reference to an affidavit
submitted to the agency detailing the time spent on each complaint, there
is no copy of this document in the record nor any other documentation
that would allow us to evaluate complainant's official time requests.
Further, there is no copy of the agency's response to complainant's
requests in the record. Given these deficiencies, the Commission
finds that there is insufficient information in the record to make a
determination on complainant's claim.
Consequently, the Commission VACATES the agency's final decision and
REMANDS this matter to the agency for further action in accordance with
the ORDER below.
ORDER
The agency shall undertake the following actions:
The agency shall conduct a supplemental investigation regarding whether
it provided a reasonable amount of official time. The agency shall
determine the precise amount of official time requested by complainant.
The agency shall also supplement the record with the identified affidavit
from complainant regarding the amount of time he requested for the
processing of his complaints. The agency shall further supplement
the record with a copy of any response to complainant's requests and
any other documentation detailing its approval of official time for
complainant's requests. The agency shall also include any other relevant
documentation supporting its determination, along with an explanation of
what is reflected in such documents. Within thirty (30) calendar days
of the date that this decision becomes final, the agency shall issue
a new final decision addressing the issue of whether complainant was
granted the proper amount of official time to prepare his EEO complaints.
A copy of the new 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
September 26, 2002
__________________
Date