Gregory K. Okuma, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A31383_r (E.E.O.C. Oct. 14, 2003)

01A31383_r

10-14-2003

Gregory K. Okuma, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Gregory K. Okuma v. Department of the Navy

01A31383

October 14, 2003

.

Gregory K. Okuma,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A31383

Agency No. 02-32253-013

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision dated November 26, 2002, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The agency defined complainant's

complaint as alleging that he was subjected to discrimination on the

bases of disability and age when:

Between May 13, 2000, and June 30, 2000, management failed to provide

complainant assistance in filling out Standard Form 86 (Questionnaire for

National Security Positions), which resulted in the temporary revocation

of his security clearance on May 24, 2002;

On May 24, 2002, the Shipwright General Foreman removed complainant from

the shop (Lumber Mill); told him that he did not want to see complainant

in the shop until his security clearance was restored and instructed

complainant's immediate supervisor to escort complainant to the shop to

remove all of his tools;

On May 24, 2002, the Human Resources Office Senior Labor Advisor issued

complainant a letter notifying the Metal Trade Council President [MTC]

that effective May 29, 2002, complainant would not have access into

the Controlled Industrial Area due to the temporary suspension of his

security clearance; and

On September 16, 2002, complainant was barred by the Shipwright Supervisor

II from conducting union business at Building 1770.

The agency dismissed issue (1), pursuant to the regulation set forth at 29

C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency

stated that although the alleged discriminatory incident occurred

between May 13, 2000, and June 30, 2000, complainant did not contact

the EEO Office until June 18, 2002, which was beyond the applicable

limitations period. Additionally, the agency dismissed issues (2) -

(4), pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim. The agency noted that issues (2) - (4)

arose from the agency's Central Adjudication Facility's intent to revoke

complainant's security clearance and eligibility for assignment to a

sensitive position. The agency noted that based on this intent and

the summary of disqualifying information, complainant was reassigned

to Shop 55, a non-sensitive area; removed to first shift working on

non-sensitive duties, and also barred from conducting union business in

sensitive areas of the Shipyard.

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.

Upon review, we find that the agency properly dismissed issue (1)

for untimely counselor contact. The record reveals that complainant

submitted his Standard Form 86 (Questionnaire for National Security

Positions), in June 2000, which resulted in the temporary revocation of

his security clearance on May 24, 2002. We note that complainant does

not challenge the actual revocation of his security clearance but rather

argues that the agency should have provided him assistance in filling

out the SF-86 form. We find that as the alleged discriminatory incident

occurred at the latest on June 30, 2000, we find that complainant's June

18, 2002 counselor contact is untimely.

With regard to issue (2), we find that the agency improperly dismissed

this issue for failure to state a claim. In alleging that he was removed

from the Lumber Mill shop and reassigned to a different shop, we find

that complainant has alleged a harm to a term, condition, or privilege

of employment. We note that the agency's statement that complainant's

reassignment was based on the intent to revoke his security clearance

improperly addresses the merits of complainant's complaint.

With regard to issue (3), we find that the agency improperly dismissed

this issue for failure to state a claim. At the outset we find that the

agency improperly defined this issue of complainant's complaint. A review

of the counselor's report and complainant's formal complaint reveal that

complainant alleged that on May 24, 2002, the senior Labor Advisor issued

a letter to the MTC President notifying him that effective May 29, 2002,

complainant will be transferred from the second shift to the first shift.

We find that in alleging that his transfer from second shift to first

shift was discriminatory, complainant has stated a cognizable claim.

As noted above, the agency's position that complainant was removed to

the first shift to work on non-sensitive duties, based on the intent

to revoke his security clearance, improperly addresses the merits of

complainant's complaint.

With regard to issue (4), we find that the agency properly dismissed this

issue for failure to state a claim. Specifically, we find complainant

has failed to allege a harm or loss to a term, condition, or privilege

of employment. We note that the EEO process is not the appropriate

forum to address the matter at issue. Complainant's ability to pursue

his official union duties falls within the purview of the collective

bargaining agreement

Accordingly, the agency's decision to dismiss issues (1) and (4) was

proper and is AFFIRMED. The agency's decision to dismiss issues (2)

and (3) is REVERSED and those claims are REMANDED to the agency for

further processing.

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 14, 2003

__________________

Date