0120064782
06-12-2007
Vic Szluzer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vic Szluzer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064782
Agency No. 1C-431-0042-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 11, 2006, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
During the relevant period, complainant was employed as a Mail Processing
Clerk at an Ohio facility of the agency. On June 23, 2006, complainant
initiated contact with an Equal Employment Opportunity (EEO) Counselor,
and, subsequently, filed a formal EEO complaint dated July 18, 2006,
alleging that the agency subjected him to discrimination on the basis
of reprisal for prior protected EEO activity when, on June 22, 2006,
a Manager of Distribution Operations (MDO) denied him official time to
work as a representative on EEO complaints. Specifically, complainant
alleged that MDO entered a union cubicle and ordered him to immediately
report to his work station. Complainant stated that, as a result of
MDO's action, he had to finish his EEO work during non-duty hours.
In its August 11, 2006 final decision, the agency dismissed complainant's
claim for failure to state a claim. Complainant filed the instant
appeal.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides that if a complainant
in the EEO process is an employee of the agency, and designates another
agency employee as his or her representative, then the agency will
give the complainant's representative a reasonable amount of official
time to prepare the complaint and respond to agency and EEOC requests
for information. The Commission has also 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. See Edwards v. U.S. Postal Service, EEOC Request
No. 05960179 (December 23, 1996). The Commission has held that it has
the authority to remedy a violation of 29 C.F.R. � 1614.605 without a
finding of discrimination. Id. The Commission held that such a claim
should not be processed in accordance with 29 C.F.R. � 1614.108, since
the focus is not on the motivation, but rather the justification of why
the complainant was denied a reasonable amount of official time. Id.
However, the complaint at issue has been properly dismissed because
it was filed by a representative claiming reprisal discrimination when
he was denied official time to represent another individual in the EEO
process. The Commission has held that the right to official time for
a representative flows from the complainant s/he is representing, and
therefore, a denial of official time for a representative is properly
raised by that complainant, and not the representative. See Lambert
v. Social Security Administration, EEOC Request No. 05970586 (October 8,
1998). For this reason, complainant in the instant matter does not have
standing to raise the issue of being denied official time when serving
as an EEO representative for another individual. Based on the above,
the agency's final decision to dismiss the complaint 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
June 12, 2007
__________________
Date
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0120064782
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064782