01A32481_r
10-23-2003
Mark Kitzmiller, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Mark Kitzmiller v. Department of Labor
01A32481
October 23, 2003
.
Mark Kitzmiller,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A32481
Agency No. 03-11-037
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 21, 2003, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian), sex (male), religion (Christianity),
and reprisal for prior EEO activity when:
Complainant found out that his previous complaint was logged in and the
summary of his initial complaint was distributed to agency management.
Since then, complainant has been experiencing reprisal from management,
for instance he has received a letter of reprimand that was placed into
his personnel record.
The agency dismissed complainant's complaint on several grounds. At the
outset the agency stated that complainant previously filed an informal
complaint on March 27, 2002, which he later withdrew. The agency stated
that complainant is unable to reactivate the EEO process by filing a
complaint on the same claims previously raised. Additionally, the agency
found that most of the incidents documented in the chronology submitted
with complainant's complaint were not brought to the attention of an EEO
Counselor within the 45 day limitation period. Thus, the agency stated
it was only addressing the logging in of complainant's previous complaint
and the letter of reprimand. With regard to the issue of the logging in
of his previous complaint, the agency found that this issue does not rise
to a level sufficient to support finding that complainant suffered a harm
for which there is a remedy. Alternatively, the agency noted that this
issue involves dissatisfaction with the processing of a previously filed
complaint and should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(8).
With regard to the issue of the July 30, 2002 Letter of Reprimand, the
agency dismissed this issue pursuant to 29 C.F.R. � 1614.107(a)(4), for
raising the same matter in a negotiated grievance procedure that permits
allegations of discrimination. Finally, the agency noted that the record
contains a November 8, 2002 memorandum by which management terminated
complainant's participation in the flexitime program. The agency stated
that although complainant did not bring this memorandum to the attention
of an EEO Counselor, this memorandum may be considered like or related
to other claims. Upon review, the agency stated that the issue of the
November 8, 2002 memorandum is inextricably intertwined with the matters
raised in negotiated grievance proceeding and is dismissed under 29
C.F.R. � 1614.107(a)(4).
On appeal, complainant disputes statements made in the EEO Counselor's
summary that were attributed to him. Further, complainant acknowledges
that he filed an informal complaint on March 27, 2002, but claims that
he asked to have the complaint postponed and not withdrawn because he
wanted to be certain that his allegations on paternity leave were correct.
Complainant states that when he filed an EEO complaint regarding paternity
leave at the end of October 2002, he was then removed from flexitime.
Complainant claims that he just found out about the paternity leave
issue on August 16, 2002. Complainant argues that he timely contacted
the EEO Office with regard to the issue he has alleged. Complainant also
argues that he has stated a cognizable claim.
In response to complainant's appeal, the agency reiterates its position
that the issue of the logging in of his complaint fails to state a claim
and is a spinoff complaint. The agency also restates its position that
the additional issues raised by complainant were untimely raised with an
EEO Counselor. The agency noted that complainant previously contacted
the Civil Rights Center (CRC) on March 27, 2002. The agency explained
that complainant contacted the CRC on April 12, 2002, asking that they
�hold off� on his complaint while he gathered additional information.
The agency explained that when it did not hear from complainant, it
considered his informal complaint withdrawn. The agency stated that
complainant filed a new informal complaint on August 28, 2002, and did
not ask the CRC to revive his previous informal complaint. The agency
contends that complainant's first contact should be considered a mere
inquiry for information and that he did not exhibit an intent to begin
the EEO process.
ANALYSIS AND FINDINGS
Upon review, we find that the agency correctly determined that the
issue of the logging in of complainant's previous complaint does not
state a claim. The Commission finds that the complaint fails to state a
claim under EEOC regulations because complainant failed to show that he
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
With regard to the July 30, 2002 letter of reprimand, we find that
the agency properly dismissed this issue pursuant to 29 C.F.R. �
1614.107(a)(4). Complainant filed his EEO complaint on December 20,
2002, alleging that he was subjected to discrimination when he received
a letter of reprimand that was placed into his personnel record.
The record reveals that on July 31, 2002, complainant filed a grievance
challenging the July 30, 2002 Letter of Reprimand. The record contains
a copy of the collective bargaining agreement which permits claims
of discrimination to be raised in the agency's negotiated grievance
procedure or the statutory (EEO) process, but not both. Thus, we find
that complainant elected to raise the issue of the July 30, 2002 Letter
of Reprimand in the negotiated grievance procedure, and now is precluded
from raising the same matter in the EEO process.
Upon review, we find the agency incorrectly determined that complainant's
allegations concerning paternity leave were untimely raised with an
EEO Counselor.<1> The record reflects that complainant submitted
his application for paternity leave in January 2002, for leave from
approximately February 14, 2002, through April 12, 2002. The record
reveals that complainant's paternity leave started on February 19, 2002.
Complainant states that he came to work a half day on February 27, 2002,
and was told that he needed a doctor's note to support his paternity
leave. Complainant claims that to his knowledge, women at the agency do
not have to submit doctors' information for maternity leave. According to
the record, complainant initiated EEO Counselor contact on March 27, 2002,
and completed an informal complaint of discrimination form regarding
benefits and leave. Complainant states and the agency acknowledges
on appeal that he did not seek withdrawal of this informal complaint.
We find that the completion of the informal complaint form exceeds a
mere inquiry for information and is sufficient to constitute an intent to
begin the EEO process. Thus, we find that with regard to the issue that
on February 27, 2002, complainant was told that he needed a doctor's note
to support his paternity leave, complainant's March 27, 2002 counselor
contact was timely. Furthermore, the Commission finds that there is no
indication that complainant withdrew or abandoned his intent to file an
EEO complaint stemming from his March 27, 2002 EEO Counselor contact.
Thus, the agency's dismissal of this issue was improper.
Finally, we find that the agency improperly dismissed the issue of the
November 8, 2002 memorandum on flexitime participation pursuant to 29
C.F.R. � 1614.107(a)(4). As discussed above, complainant filed a Step 1
grievance dated July 31, 2002, in which he challenges the July 30, 2002
Letter of Reprimand. The record contains an August 22, 2002 decision
denying the grievance. We find that the November 8, 2002 memorandum,
which was issued after the agency's decision denying complainant's
grievance, is not inextricably intertwined with complainant's July 31,
2002 grievance. The record contains a copy of the November 8, 2002
memorandum which terminated complainant's participation in the Flexitime
Program effective November 18, 2002. The memorandum stated that this
action is necessitated by complainant's failure to abide by the flexible
work time requirement to inform his Director of his intent to work an
extended work day. The memorandum states that complainant ignored this
requirement on multiple days in October 2002 and claimed that there was
no duty to notify the Director. Upon review we find that the Letter
of Reprimand and the removal of complainant from the flexiplace program
are not inextricably intertwined.
Accordingly, the agency's decision to dismiss the issues of the logging
in of complainant's previous complaint and the Letter of Reprimand is
AFFIRMED. The agency's decision to dismiss the issues of complainant's
removal from the flexiplace program and paternity leave are REVERSED and
we REMAND these issues to the agency for further processing in accordance
with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
October 23, 2003
__________________
Date
1In its final decision, the agency concluded
that the other incidents documented in the chronology submitted with
complainant's complaint were not brought to the attention of an EEO
Counselor within the 45 day limitation period. The agency does not
specify the additional issues it dismisses as untimely. On appeal,
complainant challenges only the paternity leave issue as being timely
and does not define any additional claims at issue; therefore, this
decision discusses the timeliness of only this one additional issue and
we find that there are no other claims in the complaint apart from those
discussed in this decision.