U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mozelle G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120161951 Agency No. 4F913003616 DECISION Complainant timely appealed to this Commission from the Agency's April 11, 2016 dismissal of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a SSA/Distribution Clerk in the Agency's Hanford Post Office in Hanford, California. On March 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when: On December 21, 2015, and February 19, 2016, she was only provided with 30 minutes of official time to complete her EEO paperwork even though she requested more time to do so. Complainant contacted an EEO Counselor in or around December 2015, alleging that she was subjected to discrimination. The counselor sent Complainant the pre-complaint packet containing the EEO Forms to fill out, including PS Form 1110 Request for EEO Time. Complainant submitted a PS Form 1110 to her supervisor ("S1") requesting 4 hours of official time for pre-complaint intake, during which her representative would "advise, accompany and assist" her. S1 denied the request, as well as another request for 2 hours of official time to meet with an EEO counselor. Instead, S1 granted 30 minutes for each of Complainant's requests and told her to let him know the day before if she needed a little more time. Despite her insistence that she needed more time so that her representative could advise, accompany and assist her by "reviewing documents and explaining complexities that needed to be clarified," S1 maintained that 30 minutes was "reasonable" and would not grant additional time. The previous year, S1 granted Complainant's request for 2 hours of official time, which she used to complete the EEO paperwork with the advice and assistance of her representative, who accompanied her to the EEO counseling meeting. In that instance, Complainant decided not to pursue a formal complaint. Complainant alleges that S1 limited her December 2015 and February 2016 requests to 30 minutes as retaliation "for not actually filing [a Formal Complaint] the first time after [she] took so much [official] time." Complainant raised the matter with an EEO counselor, and, as it concerned a denial of official time, her allegation was properly forwarded to the appropriate Agency official for a separate inquiry and determination. The Agency dismissed the instant complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(8) and explained that the matter would be processed separately, per EEOC Regulations. Accordingly, the Agency's regional EEO compliance office issued a letter to Complainant on June 1, 2016, finding 30 minutes to be a reasonable amount of official time for each of Complainant's requests. ANALYSIS AND FINDINGS Agencies are required to provide official time in accordance with 29 C.F.R. § 1614.605(b). When a complainant is otherwise in pay status, the agency shall consider her to be on "official time," regardless of tour of duty, when her presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. Id. An agency must establish a process for deciding how much official time it will provide a complainant. EEO-MD-110, Chap. 6 § VII.C, page 6-19. Agencies must inform complainants and their representatives of the process and how to claim or request official time. Id. If the agency denies a request for official time, either in whole or in part, it must include a written statement in the complaint file noting the reasons for the denial. If the agency's denial of official time is made before the complaint is filed, the agency shall provide the complainant with a written explanation for the denial, which it will include in the complaint file if the complainant's subsequently files a complaint. EEO-MD-110, 6-19. 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. See Edwards v. United States Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in accordance with 29 C.F.R. § 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Id. We find the Agency properly handled Complainant's allegations as a separate processable claim in accordance with our regulations. Complainant was aware of the procedure to request official time, and the proper form (PS Form 1110) was included with Complainant's EEO Packet, which she received upon contacting an EEO Counselor. The record contains copies of Complainant's completed PS Form 1110s reflecting S1's partial denial of her initial requests for 2 and 4 hours of official time. It also includes the Agency's Management Instruction EL-110-2013-4 which provides guidance for deciding how much official time to provide employees pursuing EEO matters. S1 relied on this instruction to determine that 30 minutes was a "reasonable" amount of official time to grant Complainant. Complainant's EEO Counselor provided her with a copy of Management Instruction EL-110-2013-4 and confirmed that 30 minutes was the average amount of time it took to complete the EEO paperwork. As provided in the June 1, 2016 determination letter, Section C of the instruction, as well as 29 C.F.R. § 1614.605(b) of our own regulations both provide that pre-complaint counseling should take less than 30 minutes. Complainant argues that Management Instruction EL-110-2013-4 "in no way addresses [her] reasonable request for a reasonable amount of time to be accompanied, advised and assisted [by her representative] to identify the very issues and proceed or choose not to." We disagree. All complainants identify issues and make determinations on how to proceed at this phase of the EEO process. Complainant, who is already familiar with the EEO process, fails to explain why it would take her, with the advice and assistance of a representative, 2 to 4 hours to complete paperwork that takes others an average of 30 minutes. Complainant also argues that 30 minutes was unreasonable because it was not enough time for her representative to accompany her. Our regulations and the instruction both provide that complainants may consult their representative by phone. Complainant states that she consulted her representative by phone during EEO counseling. Complainant's preference for in person communication does not make 30 minutes of official time unreasonable. The Commission has the authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination. In the instant case, there is sufficient evidence in the record, in conjunction with the Agency's June 1, 2016 determination letter, to establish that 30 minutes was a reasonable amount of official time for both of Complainant's requests. Further review under the Agency's alternate grounds for dismissal per 29 C.F.R. § 1614.107(a)(8) is not necessary. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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 October 19, 2016 __________________ 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 0120161951 2 0120161951 6 0120161951