01981423
09-18-2001
Tanya L. Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tanya L. Jones v. U.S. Postal Service
01981423
09-18-01
.
Tanya L. Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01981423
Agency No. 4D-200-1220-95
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
basis of reprisal (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. For the reasons stated herein, the agency's FAD is reversed.
According to the record, complainant was employed as a Distribution
Window Clerk, PS-5 at a Maryland facility of the agency. On January
30 and 31, 1995, February 21, 1995, and April 7, 1995, complainant
attended a hearing before an EEOC administrative judge regarding a prior
EEO complaint. As a result, on the aforementioned dates, complainant
accrued more than eight work hours in one work day and, consequently,
more than forty work hours in one work week. The agency, however,
paid complainant her regular hourly base rate for the overtime hours
she accrued. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint alleging that
the agency discriminated against her when it failed to pay her at the
overtime rate<1> and penalty overtime rate<2>.
The agency stated that complainant was paid her regular hourly base
rate for attending the EEOC hearings in accordance with the collective
bargaining agreement (CBA) between the agency and the representative
union, the Fair Labor Standards Act (FLSA), and agency policy.
Essentially, the agency indicated that it can only pay employees premium
wages for actual work, which does not include participation in the
EEO process. The agency stated further that, in accordance with EEOC
regulations, complainant was granted reasonable official time to attend
the EEOC hearing.
An investigation was conducted and complainant was informed of her right
to choose either a hearing before an EEOC administrative judge (AJ) or
an immediate FAD. Complainant failed to make an election so the agency
issued a FAD, in which it found no discrimination because complainant
failed to establish pretext.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides in pertinent part: �The
complainant and representative, if employed by the agency and otherwise
in a pay status, shall be on official time, regardless of their tour of
duty, when their presence is authorized or required by the agency or the
Commission during the investigation, informal adjustment, or hearing on
the complaint." In addition, the EEOC's Management Directive (MD-110)
states that "[w]hatever time is spent in [official EEO] meetings [or]
hearings is automatically deemed reasonable. . . . If a complainant or
representative has already worked a full week and must attend a hearing
or meeting on an off day, that complainant or representative is entitled
to official time, which may require that the agency pay overtime.� EEOC
Management Directive (MD-110), November 9, 1999, pg. 6-16.
Complainant's complaint alleges reprisal discrimination when the agency
improperly denied her overtime associated with her attendance at the
EEO hearings at issue. The Commission, however, finds that the more
appropriate analysis is whether complainant was entitled to official time
as provided under 29 C.F.R. � 1614.605(b). We note in this regard that
it is not relevant whether the agency's action was motivated by reprisal
against the complainant's prior EEO activity. The agency, by denying
complainant overtime pay to attend her EEO hearing, essentially denied
her official time, which violates 29 C.F.R. � 1614.605(b). See Edwards
v. U. S. Postal Service, EEOC Request No. 05950708 (October 31, 1996).
The Commission has authority to remedy such a violation, without a finding
of discrimination. Id. For the aforementioned reason, we hereby REVERSE
the agency's final decision.
ORDER
The agency is ORDERED to pay complainant at an overtime rate or a
penalty overtime rate, whichever is appropriate, for the time she
spent participating in the EEO hearing held in January, February, and
April 1995 beyond her scheduled tour of duty. If there is a dispute
regarding the exact amount of payment, the agency shall issue a check
to the complainant for the undisputed amount within thirty (30) 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 enforcement or clarification must
be filed with the Compliance Officer, at the address referenced in the
statement entitled �Implementation of the Commmission'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 (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
__09-18-01________________
Date
1Overtime pay is paid at the rate of one and
one-half (1 �) times the regular hourly base rate. It is paid for work
performed in excess of eight (8) hours in any one work day or forty (40)
hours in any one work week.
2Penalty overtime pay is paid at the rate of two (2) times the regular
hourly base rate. It is paid where an employee has to work overtime on
more than four of the employee's five scheduled days in a work week or
more than ten hours on a regular scheduled work day.