By Deryn Sumner, March 15, 2017
Under the EEOC’s regulations at 29 C.F.R. 1614.605(b), complainants who are employees of the agency are allowed “a reasonable amount of official time” while on duty hours to do tasks relating to their EEO complaints. This includes time to prepare the formal complaint, respond to requests for affidavits from EEO investigators, and respond to Interrogatories, Document Requests, and Requests for Admissions during discovery once the case is in the hearing stage. Any time spent by the complainant as required by the administrative judge or the agency representative is typically considered inherently reasonable. This time includes attending fact-finding investigations and interviews with EEO investigators, mediations, settlement conferences, prehearing conferences and other prehearing proceedings, and the hearing itself.
But what about time spent not in the presence of the administrative judge or agency representative, such as drafting responses to an affidavit or working on an appeal? What is considered reasonable in those circumstances? Some agencies have internal guidance on how many hours of official time supervisors should grant employees for various aspects of processing their EEO complaints. In responding to requests for official time, or defending against claims that reasonable official time was not granted, you should check to see if your agency has such internal guidance. And of course, we can look to decisions from the EEOC’s Office of Federal Operations to further guide us on the amount of official time considered reasonable to grant.
Let’s look at a couple recent decisions.
In Virginia K. v. Department of Treasury, EEOC Appeal No. 0120142662 (December 28, 2016), the Commission looked at how many hours of official time were reasonable to grant to a complainant who needed to respond to 80 questions from the EEO investigator. The complainant requested 80 hours, I guess presuming that each question would take an hour to answer. The agency found six hours of official time to be more appropriate. On appeal, the Commission determined that 15 hours of official time was the right amount, stating, “Some questions were for duplicate information, i.e., Complainant’s name, position held, the identity of her supervisors, and her past EEO activity. Complainant was able to answer a number of questions with one word answers or short responses. Nevertheless, there were a large volume of questions. A number of them solicited information in detail, and some would likely require Complainant to gather and review documents.” The Commission also factored into its determination as to the appropriate number of official hours the fact that the agency needed complainant to perform her normal job duties, she was behind on time sensitive work, and she only worked 24 hours per week which, the Commission found, “affects the amount of official time that is reasonable.” The Commission cured the agency’s act in only granting six hours by ordering restoration of nine hours of administrative leave to the complainant’s leave balances.
Okay, so depending on how many questions the EEO investigator asks a complainant to answer (and I’ve seen some that rival SF-86 forms), as many as 15 hours of official time can be considered reasonable. And what about drafting appeal briefs? The EEOC’s regulations permit complainants to designate other federal employees as their representatives and allows them reasonable amounts of official time to work on the complaint. In Sheryl S. v. Social Security Administration, EEOC Appeal No. 0120150144 (November 1, 2016), the complainant’s representative stated that it took him between 20 and 26 hours to prepare an appeal to the Office of Federal Operations (which I presume also included a brief in support of the appeal, not just the notice) but conceded that it was his first time preparing an appeal and may have taken longer than necessary. Noting that the appeal did not relate to complex factual or legal issues, the Commission affirmed the agency’s grant of 11.5 hours of official time as reasonable. Sumner@FELTG.com