07A10059
06-27-2002
Robert L. Morman, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Robert L. Morman v. Department of the Air Force
07A10059
June 27, 2002
.
Robert L. Morman,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 07A10059
Agency Nos. ELOR97007; ELOR96005; ELOR97019; ELOR97023; ELOR97024
Hearing Nos. 380-98-8134X; -8136X; -8137X; -8138X; -8139X
DECISION
Following its March 2, 2001 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's finding that the agency retaliated
against complainant. The agency also requests that the Commission affirm
its rejection of the Administrative Judge's order to pay complainant
$7,500.00 in non-pecuniary damages and an undetermined amount in costs.
For the following reasons, the Commission affirms the agency's final order
but finds that the agency denied complainant official time and directs
the agency to take corrective action consistent with this decision.
Complainant, a Woodworker employed at the agency's Elmendorf Air Force
Base in Alaska, represented himself and over thirty federal employees in
EEO proceedings. Between 1995 and 1997, complainant filed five formal
EEO complaints alleging that the agency had discriminated against him
on the bases of race (African-American), color (black), sex (male),
age (46 years), and in reprisal for his EEO activity. All of the
complaints concern complainant's involvement, as a representative, in
the EEO process. The complaints were consolidated for hearing by an
Administrative Judge. The Administrative Judge found that although the
issue of ongoing interference with the EEO process was never specifically
accepted by the agency for investigation, it was sufficiently important
to be addressed during the hearing.
In his decision, the Administrative Judge concluded that complainant
failed to prove that any of the agency's actions were motivated by
discriminatory animus towards complainant's race, color, sex, or age.
However, the Administrative Judge found that the agency's restrictions
on and scrutiny of complainant's use of official time amounted to
interference with the EEO process because they caused a chilling effect on
complainant and others. Although the Administrative Judge acknowledged
that the agency had a right to expect its workers to perform the duties
of their job description, he concluded that such an expectation could not
be considered a legitimate, non-discriminatory reason for interference
in the EEO process. The Administrative Judge found the agency liable for
retaliation because it failed to proffer a legitimate, nondiscriminatory
reason for its interference with the EEO process.
The agency raises several arguments on appeal including, inter alia,
whether the Administrative Judge abused his discretion in considering the
claim of EEO interference; whether such a claim states a claim under 29
C.F.R. � 1614.107(a)(1), see Wildberger v. Small Business Association,
EEOC Request No. 05960761 (October 8, 1998) (holding that a complainant
who alleges a harm or loss with respect to his representative capacity
is not an aggrieved employee and fails to state a cognizable claim); and
whether the Administrative Judge erred in failing to draw a distinction
between a finding of reprisal based on intent and a per se regulatory
violation.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
Upon review, we find that the Administrative Judge improperly
processed the claim of EEO interference as a complaint of retaliation.
In reaching this conclusion, we find that the EEO interference for
which the Administrative Judge found the agency liable was the agency's
restrictions on and scrutiny of complainant's use of official time.
In the EEO Management Directive 110, November 9, 1999 (EEO MD-110),
the Commission determined that:
Where the complainant contends that an agency improperly denied
him/her official time and the Administrative Judge or OFO finds in the
complainant's favor, the Administrative Judge or OFO may order the agency
to restore such personal leave as the complainant may have used in lieu
of official time.
EEO MD-110, 5-27. Accordingly, the remedy for the improper denial of
official time is to restore such personal leave as complainant may have
used. For these reasons, we find no merit to the agency's contention
that the Administrative Judge abused his discretion in considering
the claim.
The Commission considers it reasonable for agencies to expect their
employees to spend most of their time doing the work for which they
are employed. EEO MD-110, 6-16. Therefore, an agency may restrict
the overall hours of official time afforded to a representative, for
both preparation purposes and for attendance at meetings and hearings,
to a certain percentage of that representative's duty hours in any given
month, quarter or year. Id. The Administrative Judge found that the
16 hours per month of official time the agency granted complainant was
reasonable with one exception: the agency's refusal to grant complainant
additional time to attend hearings.
The agency required complainant to give one week's notice prior to
receiving official time, and he had to make his requests on one form for
the full week. Management required the names and case numbers of those
complainant represented to appear on the form and would send the form
to the EEO Office to ensure that complainant did, in fact, work on the
cases listed on the form. In light of complainant's original request
for 84 hours per month of official time and the severely acrimonious
relationship that evolved between complainant, management and the
facility's EEO office, which the Administrative Judge attributed to
complainant's conduct, we are not persuaded that the agency's restrictions
on and scrutiny of complainant's use of official time was unreasonable.
In conclusion, we find that the Administrative Judge improperly processed
the claim of interference with the EEO process as a claim of retaliation
and consequently erroneously held that the agency retaliated against
complainant. See Pollack v. Department of the Treasury, EEOC Appeal
No. 07A10039 (March 8, 2002). While we affirm the agency's final
order, we direct the agency to prospectively provide complainant with
a reasonable amount of official time to attend EEO hearings, on behalf
of himself or other agency employees, and to take corrective action
consistent with the Order below.
ORDER
Within sixty calendar days of the date this decision becomes final, the
agency is ordered to restore to complainant all personal leave he used
to attend EEO hearings from April 1997 to the present. The complainant
shall cooperate in the agency's efforts to compute the amount of personal
leave to be restored and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of leave,
the agency shall restore the undisputed amount within sixty (60) calendar
days of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address referenced in the
statement entitled "Implementation of the Commission's Decision."
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 (S0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 27, 2002
__________________
Date