U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Romeo K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120150118 Agency No. 0120130084 Agency No. 4F-926-0028-12 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated September 12, 2014, regarding his claim of entitlement to official time. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office facility in Monterey Park, California. On July 20, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: on various unspecified dates, he was denied official time. On August 24, 2012, the Agency issued a final decision. Therein, the Agency dismissed the instant formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency stated that because Complainant raised the issue of dissatisfaction concerning the processing of his complaint when he was denied official EEO time, the proper method for addressing such matters was within the continued processing of his complaint. The Agency also dismissed the instant complaint pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds that it was untimely filed. That final decision was appealed to the Commission. In EEOC Appeal No. 0120130084 (May 29, 2014), the Commission found that a claim regarding the denial of official time states a separately processable claim claiming a violation of the Commission's regulations, without requiring a determination of whether the action was motivated by discrimination. As such, the Commission found that Complainant asserted an actionable claim. The decision then held that, if the Agency denies a request for official time, either in whole or in part, the Agency must include a written statement in the complaint file noting the reasons for the denial. The Commission noted that the Agency indicated that the official time claim had been processed as an independent matter from the formal complaint. As such, the Agency asserted that Complainant has been issued a "separate document" relating to the official time request. However, the Commission found that the Agency failed to provide any record any "separate documentation" expressly relating to this matter. Therefore, the Commission found that the Agency's dismissal of the complaint was not appropriate. The Commission ordered that the Agency to contact Complainant to clarify his claim that he was denied official time and to provide details of the alleged denial including when it happened and who denied official time. Complainant shall also provide any evidence in support of his claim. Complainant must provide this information to the Agency within 15 calendar days. Following the investigation, the Commission ordered the Agency to issue a decision, with appeal rights to the Commission, as to whether Complainant was denied a reasonable amount of official time regarding the matters raised in his claim. The Agency conducted its inquiry into Complainant's claim for official time. The record indicated that Complainant made several requests for 2 hours of official time to meet his representative at the time from 2011 through 2012. Included in the documents is a letter dated January 5, 2011, stating that Complainant was not working due to the medical restrictions imposed by Complainant's treating physician through his claim with the Department of Labor's Office of Workers Compensation Programs. The Agency included its letter dated July 3, 2012, in which the Agency denied Complainant's claim of denial of official time based on Complainant's failure to provide contact information to the Agency official investigating the matter. Complainant's representative also submitted documentation to the Agency in July 2014, which primarily consisted of the same documents Complainant provided to the Agency in 2011 and 2012. In compliance with the Commission's order, the Agency issued a final decision dated September 12, 2014. The Agency provided Complainant its previous decision from July 2012. In addition, the Agency noted that during the time period at issue, Complainant was not in a duty status. As such, Complainant was not entitled to EEO official time. This appeal followed. On appeal, Complainant's Representative state that the Agency denied official time because there was no case number provided by Complainant to the Postmaster and the Postmaster merely ignored Complainant's requests. As such, the Representative requested that the Commission reverse the Agency's decision. ANALYSIS AND FINDINGS Section 1614.605 of 29 C.F.R. provides that Complainants, if they are employees of the Agency where the complaint arose and was filed, are entitled to a reasonable amount of official time to present the complaint and to respond to Agency requests for information, if otherwise on duty. 29 C.F.R. § 1614.605(b), see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 6.-16. (Aug. 5, 2015). The Agency has indicated that, at the time of Complainant's request for official time, he was not otherwise in an on duty status. Complainant is silent on the Agency's argument. Based on the record, we find that the Agency correctly determined that Complainant has not established that he was entitled to a reasonable amount of official time for he did not show that he was "otherwise on duty." CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations February 7, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150118 2 0120150118