Mark Kitzmiller, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionOct 23, 2003
01A32481_r (E.E.O.C. Oct. 23, 2003)

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.