Peter G. Nagurny, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 26, 2002
01A13596_r (E.E.O.C. Sep. 26, 2002)

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