Elizabeth A. Williamson v. Department of the Treasury 01A33728 6/23/2004 . Elizabeth A. Williamson, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency. Appeal No. 01A33728 Agency No. TD 03-2310 DECISION Complainant filed a timely appeal with this Commission from the final agency decision dated May 9, 2003, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. In her formal complaint dated April 7, 2003, complainant alleged that she was subjected to discrimination on the bases of sex and in reprisal for prior EEO activity. In its final decision dated May 9, 2003, the agency determined that complainant's complaint was comprised of the following two claims: 1) on February 26, 2003, [complainant received] a memorandum...that informed [her] of the procedures for requesting official time for EEO related activities; and 2) even though management knew the Administrative Judge had scheduled March 5, 2003 for hearing closing arguments in [a] prior complaint, [complainant] was directed to report to duty on March 4, 2003, no later than 8:30 a.m. [Complainant] allege[s] the directive was an attempt to interfere with [her] involvement in preparing closing arguments. [Complainant] state[s] [she] had to use annual leave instead of official time for this purpose. The agency dismissed claim (1) for failure to state a claim. The agency dismissed claim (2) for alleging dissatisfaction with the processing of a prior complaint. Subsequently, on July 11, 2003, the agency issued a letter to complainant stating that it had erred in dismissing claim (2). The agency stated that this claim would be remanded to the agency for further processing in order for a decision to be made on the merits of the claim. The agency issued a final decision dated April 5, 2004, regarding claim (2). The agency concluded that complainant was not improperly denied a reasonable amount of official time. Specifically, the agency acknowledges that complainant received a letter from agency counsel “advis[ing] that the amount of time requested [by complainant] was excessive and would not be approved as such;” however, agency counsel further stated that complainant should submit a second request to her supervisor, “specifying the amount of time needed..., and with more specificity than her original request.” In its April 5, 2004 final decision, the agency further stated that complainant did not submit another request, but instead signed for annual leave. On appeal, complainant states that she was the “only person denied time to participate in EEO hearings.” Complainant further states that the policy is being used to silence her. Additionally, complainant states that her supervisor “told [her] orally and in writing that he could not grant [official time] to [her] to work on the case without [her] telling him what would be in [her] written brief and what [she] would be working on specifically.” Claim (1) - Complainant's Receipt of Memorandum Regarding Procedures for Requesting Official Time The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The agency properly dismissed claim (1) for failure to state a claim. While the record reflects that the agency issued a memorandum (undated) to complainant setting forth the procedure for requesting official time for EEO purposes, we do not find that this action rendered complainant aggrieved or that it had a chilling effect on complainant's use of the EEO process. The memorandum in question informed complainant that in order to request official time for EEO matters “an aggrieved party must inform their manager immediately of their request for official time..., preferably within 3-5 days prior to the [complainant's] need for the official time. Upon said request, [complainant's supervisor will] review the information immediately and give [complainant] a response within 48 hours.” EEOC Management Directive 110, Chapter 6 (November 9, 1999) provides, in pertinent part, “agenc[ies] must establish a process for deciding how much official time it will provide a complainant. Agencies further must inform complainants...of the process and how to claim or request official time.” The Commission finds that while complainant had an ongoing EEO case at the time the memorandum in question was issued, the agency's action of setting forth the procedure to request official time and directing complainant to follow this directive does not state a cognizable claim. Claim 2-Denial of Official Time The Commission has stated that an allegation pertaining to the denial of official time states a separately processable claim alleging a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination or retaliation. See Pollack v. Department of the Treasury, EEOC Appeal No. 07A10039 (March 8, 2002). The Commission determines that the agency did not improperly deny complainant a reasonable amount of official time. The record contains a letter from complainant's attorney to complainant's supervisor (S1) dated February 26, 2003. Therein, complainant's attorney states that closing arguments on a prior EEO case for complainant are due on March 4, 2003. In addition, complainant's attorney requests that S1 extend the time for complainant to report to duty until after the Administrative Judge issues her bench decision on March 10, 2003. The record also contains a letter from agency counsel (A1) to complainant's attorney dated February 27, 2003. Therein, A1 states that the agency is not going to grant complainant in excess of 40 hours “over the next [seven] work days to work on EEO matters.” In addition, A1 further states that if complainant needs to assist her attorney “during the remaining stage of the [EEO process], she should make a request to her manager, specifying the amount of time requested and purpose, and he will provide her with a response.” The Commission determines that the letter from A1 stating that the agency would not approve an excess of 40 hours of official time and that complainant may submit another request does not support complainant's claim that she was improperly denied a reasonable amount of official time. The term “reasonable,” with respect to preparation time ..., is generally defined in terms of hours, not in terms of days, weeks, or months. EEOC Management Directive 110, Chapter 6 (November 9, 1999). Moreover, the record is devoid of evidence indicating that complainant made a subsequent request for official time. Accordingly, the agency final decision dated May 9, 2003, dismissing claim (1) is AFFIRMED. In addition, the agency's final decision dated April 5, 2004, finding that complainant was not improperly denied a reasonable amount of official time is AFFIRMED. 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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations 6/23/2004 Date