Michael Steger, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00560 (E.E.O.C. Apr. 3, 2000)

01a00560

04-03-2000

Michael Steger, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Michael Steger, )

Complainant, )

)

v. ) Appeal No.01A00560

) Agency No.ACPERS No. 9906J0350

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The complainant timely filed an appeal with this Commission from a final

decision, dated September 7, 1999, which the agency issued pursuant

to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's

appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at 29 C.F.R. � 1614.405).

The complainant alleged that in reprisal for his prior EEO activity,

the agency suspended his local security clearance and subjected him to

the �harassment of psychological examinations.� The agency dismissed

the complaint for failure to state a claim because, even though the

complainant had received notice that his security clearance was under

review because of unfavorable letters written by his supervisors,

he purportedly had not demonstrated a material, tangible loss or harm

associated with an entitlement of employment.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to REVERSE the final agency decision.

The Commission is precluded from reviewing the substance of security

clearance decisions, or the validity of the security requirement

itself. See "Policy Guidance on the Use of the National Security

Exception Contained in 703(g) of Title VII of the Civil Rights Act of

1964, as amended," EEOC Notice No. N-915-041 (May 1, 1989). However, the

Commission is not precluded from determining whether the grant, denial,

or revocation of a security clearance was conducted in a nondiscriminatory

manner. Schroeder v. Department of Defense, EEOC Request No. 05930248

(April 14, 1994); and Thierjung v. Department of Defense, EEOC Request

No. 05880664 (November 2, 1989). Thus, even though a security clearance

is not an entitlement of employment, the writing of letters which led to

the suspension of the complainant's local security clearance, allegedly

for an unlawful motive, states a claim of unlawful retaliation upon

which a determination may be rendered.

In addition, even if the instruction to undergo a command directed

psychiatric evaluation is viewed as a preliminary step to a personnel

action, the Section-by-Section analysis of 29 C.F.R. �1614.107(e) at 57

Fed. Reg. 12643 (April 10, 1992), states:

if the individual alleges, however, that the preliminary step was taken

for the purpose of harassing the individual for a prohibited reason,

the complaint cannot be dismissed under this section because it has

already affected the employee.

Id. at 12643. The complainant alleges that the requirement that he

undergo psychological examinations was harassment. Therefore, the claim

cannot be dismissed as a preliminary step to taking a personnel action.

Moreover, if the complainant was required to undergo a psychiatric

evaluation because of his prior EEO activity, such conduct could deter

other employees from exercising their legal rights under 29 C.F.R. Part

1614. According, the Commission finds that the complainant's second

allegation also states a claim under 29 C.F.R. Part 1614.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 an

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 (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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

(R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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:

April 3, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that the

decision was mailed to the complainant, the complainant's representative,

and the agency on:

DATE Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding

the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.