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