01A15227_r
09-10-2002
Mark E. Keppler, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Mark E. Keppler v. Department of the Army
01A15227
September 10, 2002
.
Mark E. Keppler,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A15227
Agency No. AEGBFO0107B0150
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision 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.
Complainant initiated EEO Counselor contact on March 29, 2001.
Informal efforts to resolve complainant's concerns were unsuccessful.
In his formal complaint, complainant alleged that he was subjected
to discrimination on the bases of sex and in reprisal for prior EEO
activity when:
In March 1996, the agency classified complainant into the wrong retirement
coverage, in violation of 5 U.S. Code Chapter 84 and never provided all
benefits associated with either plan that he was entitled to receive.
The agency caused complainant to lose financial and retirement benefits
and critical financial decision-making opportunities;
In May 1996, the agency did not provide complainant procedures for
filing an administrative claims as required by 5 C.F.R. Chapter 4,
Subpart 1606.14;
The agency did not provide a required response or respond within the
regulatory time frame to the administrative claim as required by 5
C.F.R. Chapter IV, Subpart 106.14;
The agency violated DOD 7000.14-R Financial Management Regulations when
specific regulation violations were provided to the agency on numerous
occasions with no response or corrective active taken to address these
violations;
The agency violated the Civilian Law Manual (CPLM). This denied
complainant the same benefit options provided to other employees;
The agency violated Internal Revenue Service regulations with regard
to withholding and statue of limitations regarding employees' tax
liabilities. This included tasking complainant to prepare numerous
W-2(c)'s and corrections regarding pay errors. This caused the agency to
illegally withhold a tax over collection refund and delayed tax refund
of complainant and spouse, required the employee to file for a filing
extension and denied associated interest to which complainant and his
spouse were entitled;
The agency failed to follow negotiated agreement procedures requirements,
including providing timely responses and denied a grievance on May 5,
2000, and May 31, 2000, without proper justification and refused to
address issues required by the agreement. The agency also promised
a meeting to avoid arbitration and then did not conduct a meeting.
This prevented complainant from having the same rights and a resolution
process provided to other employees;
The agency through the EEO office offered alternative dispute resolution
(ADR), requested an extension to conduct ADR, but never conducted ADR;
The agency made an �adverse determination� regarding a Freedom of
Information Act (FOIA) request to identify the source of documents
regarding audits and error identification and correction; and
The agency required complainant to conduct work outside his job
description, including making audits and numerous W-2 and W-2(c)
corrections regarding agency mistakes and errors and diminished
complainant's ability to successfully complete or concentrate on his
assigned duties, which negatively impacted his performance appraisals.
In its final decision, the agency dismissed complainant's complaint. The
agency determined that complainant elected to pursue claims 1 - 6, and 8
through a negotiated grievance process, precluding adjudication of this
matter within the EEO process. The agency further dismissed claims 1,
2, and 7 on the grounds of untimely EEO Counselor contact, and claim
10 on the grounds that complainant did not seek counseling regarding
this claim, and that it is not like or related to matters for which
complainant underwent EEO counseling. The agency also dismissed claims
3 - 6, and 9 for failure to state claim. Finally, the agency determined
that claim 8 impermissibly expressed dissatisfaction with the EEO process.
On appeal, complainant acknowledges that he first raised claims 1 - 7
through a negotiated grievance process. However, complainant contends
that he should be permitted to proceed within the EEO process because
the union withdrew his request for arbitration of his grievance claim.
Complainant contends that the withdrawal of his grievance claim was
conditioned on the agency's agreement to hold yet another meeting with
complainant to address his concerns, which he contends it has not done.
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The agency dismissed claims 3 - 6, and 9 for failure to state a claim.
The Commission determines that the matters raised therein do not address
a personal loss or harm regarding a term, condition, or privilege of
complainant's agency employment. Accordingly, the agency's dismissal
of claims 3 - 6, and 9 is AFFIRMED.
Untimely EEO Counselor Contact / Failure to Seek EEO Counseling
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The agency dismissed claims 1, 2, and 7 on the grounds that they were
the subject of untimely EEO Counselor contact. The record reveals that
the matters in claims 1, 2, and 7 concern actions that occurred in
March 1996, May 1996, and May 2000, respectively. The record further
reveals that complainant initiated EEO Counselor contact on March 29,
2001, which is well beyond the forty-five-day time limit. On appeal,
complainant fails to present any argument or evidence warranting an
extension of the applicable time limits. Consequently, we find that
the agency properly dismissed claims 1, 2, and 7, and the dismissal of
those claims is AFFIRMED.
Further, we note that the agency also dismissed claim 10 because it
determined that the matter was not first brought to the attention of
an EEO Counselor. EEO Regulation 29 C.F.R. � 1614.107(a)(2) provides
that the agency shall dismiss a claim that has not been brought to the
attention of a Counselor and is not like or related to a matter that has
been brought to the attention of an EEO Counselor. The record reveals
that claim 10 was not presented by complainant during EEO counseling.
Moreover, we determine that claim 10 is not like or related to the other
matters raised during counseling. Consequently, we AFFIRM the agency's
dismissal of claim 10 pursuant to 29 C.F.R. � 1614.107(a)(2).
Dissatisfaction with EEO Processing
The agency also dismissed claim 8 on the grounds that it impermissibly
expressed dissatisfaction with the EEO process. In claim 8, complainant
alleged that the EEO office failed to conduct Alternative Dispute
Resolution as part of the processing of his complaint. We note that
when claims of improper processing are raised, the complainant should be
referred to the agency official responsible for the quality of complaints
processing, and the agency should earnestly attempt to resolve any
dissatisfaction with the complaints process as early and expeditiously
as possible. See EEO Management Directive-110, 5-25 (November 9,
1999). Consequently, we find that the agency properly dismissed claim 8.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint for the reasons set forth herein.
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
September 10, 2002
__________________
Date