Mark E. Keppler, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 10, 2002
01A15227_r (E.E.O.C. Sep. 10, 2002)

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