Time Off to Attend Depositions

In Wiley v. Glassman, 2007 WL 4354431, C.A.D.C. No. 06-5402 (December 14, 2007), the U.S. Court of Appeals for the District of Columbia Circuit held that the Broadcasting Board of Governors (BBG), (formerly known as the U.S. Information Agency), did not retaliate against Ms. Wiley when it denied her the use of administrative time (often called “official time”) to attend the depositions of witnesses in her EEO lawsuit, and instead forced her to use her own annual leave. Ms. Wiley’s claim of reprisal was dismissed.

In this case, Ms. Wiley appeared for the deposition of a witness in her suit against BBG. When Ms. Wiley asked her supervisor to take administrative leave to attend this witness deposition, Ms. Wiley was told that administrative leave was “unavailable” for that purpose. Ms. Wiley then inquired of the agency’s deputy general counsel, who stated that he was unable to reach a conclusion as to whether Ms. Wiley was entitled to official time to attend a witness deposition and that he had to conduct more research on the matter. In the face of that response, Ms. Wiley decided to attend witness depositions anyway.

Shortly thereafter, the BBG issued guidelines applicable to all employees spelling out where official time was appropriate in Title VII proceedings. In the guidelines, BBG prohibited employees from using official time to attend depositions other than their own. As a consequence, Ms. Wiley was charged with 56 hours of annual leave to attend the witnesses’ depositions. Ms. Wiley argued that charging her annual leave to attend these depositions was an act of retaliation for bringing her original discrimination claim.

The D.C. Circuit dismissed Ms. Wiley’s claim of reprisal. In so doing, the court found that “no statute regulation or policy” authorized the use of administrative leave in these circumstances. Neither did the collective bargaining agreement allow for official time to attend a witness’s deposition. The court held that the BBG did not deprive Ms. Wiley anything to which she was entitled before the guidelines were issued. The court opined that Ms. Wiley’s decision to attend the depositions after receipt of the deputy general counsel’s email was a “calculated risk.” In conclusion, the court found that “no reasonable jury could infer retaliation from the agency’s decision to comply with existing law and agency agreements.” Therefore, Ms. Wiley’s reprisal claim were dismissed and not permitted to go to trial before a jury for resolution.

This case puts employees processing EEO complaints on notice that if they are involved in litigation against a federal agency and want to attend the depositions of the witnesses to the case, the employees might have to take annual leave for that time unless the agency has a policy or collective bargaining agreement granting official time for such purpose. However, employees should continue to request official time which may still be granted by their supervisors. Even if denied official time, the annual leave used may be restored if the employee settles or prevails in the EEO case as part of pecuniary damages.