01a53836_r
10-19-2005
Steven C. Price, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Steven C. Price v. Department of the Navy
01A53836
October 19, 2005
.
Steven C. Price,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A53836
Agency No. 04-32253-007
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning his formal EEO 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Nuclear
Engineer, GS-840-9, at the agency's Pearl Harbor Naval Shipyard and
Intermediate Maintenance Facility in Pearl Harbor, Hawaii. On October
16, 2003, complainant initiated EEO Counselor contact, and filed a
formal complaint on January 30, 2004. Complainant claimed that he was
discriminated against on the bases of race (Samoan), color (brown), age
(D.O.B. 4/25/69), and in reprisal for prior EEO activity when:
(a) on August 19, 2003, the Security Officer, Code 1120, alluded that
complainant had a drug or alcohol problem when he advised him to "think
about going to drug treatment program or alcohol abuse classes because
you would have to go through 'loops' to get your clearance back;"
(b) on September 10, 2003, the Shipyard Commander issued him a Notice
of Suspension of Access to the Shipyard Controlled Industrial Area (CIA)
and to classified materials; and
(c) on October 31, 2003, while he was at the Security Office, the
Assistant Counsel discussed his case by saying, "[Complainant] contacted
management and told them charges were dismissed" to a Security Officer
personnel within earshot of other people, thus violating his right to
privacy.
On January 30, 2004, complainant requested that the instant complaint
be amended to include an additional claim: that he was discriminated
against on the bases of race, color, age, and in reprisal for prior EEO
activity when:
(d) on January 26, 2004, the Shipyard Commander issued him a letter
affirming his September 10, 2003 decision to suspend his access to the
Shipyard CIA and to classified materials.
On February 5, 2004, the agency accepted complainant's request that the
instant complaint be amended to include claim (d).
On June 7, 2004, the agency issued a partial dismissal. Therein, the
agency accepted claim (b) for investigation. The agency dismissed claim
(a) pursuant to 29 C.F.R. � 1614.107(a)(2), on the ground of untimely EEO
Counselor contact. The agency concluded that complainant's October 16,
2003 contact was beyond the 45-day time limitation. The agency dismissed
claim (c) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. Specifically, the agency found that complainant did not suffer
any job related loss or injury as a result of the action of the agency.
The agency stated that an alleged violation of the Privacy Act is not
within the purview of the EEO process. The agency dismissed claim (d)
pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim as
that raised in claim (b).
At the conclusion of the investigation of claim (b), complainant
was informed of his right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by the
agency. Complainant requested that the agency issue a final decision.
In its March 28, 2005 FAD, the agency found no discrimination regarding
claim (b). The agency concluded that complainant failed to establish
by a preponderance of the evidence that he was discriminated against
because of his race, color, age or prior protected activity.
Claim (b)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
non-discriminatory reasons for its employment actions. The record
reflects that on March 30, 2003, complainant collided and damaged another
vehicle; left the scene of the accident without attempting to locate or
notify the vehicle owner with whom he collided, or authorities; and
did not stop when directed to stop by Hickman Air Force Base security
personnel. The record further reflects that on September 10, 2003, the
Shipyard Commander (Commander) issued complainant a Notice of Suspension
of Access to the CIA and to classified materials based on complainant's
poor judgment, lack of reliability or lack of trustworthiness following
the March 30, 2003 incident. In his Notice, the Commander instructed
complainant to turn in his green badge, and that he would be issued a
white badge.<1> The record reflects in the fact-finding conference,
the Commander stated that during the relevant time period, management
expected complainant "to step up,� and to acknowledge his involvement in
the above referenced vehicular accident. The Commander further stated
that complainant failed to notify management in a timely manner concerning
the March 30, 2003 incident, and that "we suspended the access based on
that incident."
The record further reflects that the Supervisory Security Specialist
(Specialist) stated that after receiving notification from Hickman and
additional information from the U.S. Attorney's Office concerning three
charges against complainant as a result of the March 30, 2003 incident,
management issued complainant a Notice of Suspension on September 10,
2003. The Specialist further stated "our practice is to suspend access,
put the person at white badge on that day and then they have approximately
24 hours to submit an appeal to the suspension of the access and we ask
that they do that in writing and then we look at their appeal and then
usually . . . we uphold the initial decision to suspend access or we've
maybe overturned it if there's sufficient information." The Specialist
stated that after receiving additional information concerning the March
30, 2003 incident, she shared her input with the Commander and other
management officials. Specifically, the Specialist stated that "since
it was official and it was serious enough, we felt we needed to suspend
access to the control industrial area at that point."
Complainant asserted that he was treated differently from a co-worker
who was allowed access for several months following a similar accident,
until the co-worker was suspended. However, the Specialist stated
that complainant's situation could be distinguished for two reasons.
Specifically, the Specialist stated that the co-worker's mother,
who also worked at the Shipyard, reported the incident to the
Commander. The Specialist stated that "an individual or . . . their
representative self-reporting adverse information. . . that's one of the
responsibilities of somebody who has a clearance to report that type of
information. So we prefer that the individual report it." The Specialist
also stated that the during the relevant time, the co-worker did not
report to work. The Specialist stated that because the co-worker had
not reported to work during the relevant time, the agency could not take
any action against him. The Specialist stated that it was not until the
agency received additional information and court documents, that it took
action to suspend the co-worker's access to classified information.
We find that complainant has not demonstrated that the agency's
articulated reasons for its actions, as discussed above, were a pretext
for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
Claims (a), (c) and (d)
Regarding claim (a), the record reveals that the alleged discriminatory
event occurred on August 19, 2003, but that complainant did not initiate
contact with an EEO Counselor until October 16, 2003, which is beyond
the forty-five-day limitation period. On appeal, complainant presented
no persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Therefore, we find that the
agency properly dismissed claim (a) for untimely EEO Counselor contact.
Regarding claim (c), the Commission finds that this claim fails to state a
claim under the 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). Moreover,
the Privacy Act, 5 U.S.C. 552(g)(1), provides an exclusive statutory
framework governing the disclosure of identifiable information contained
in federal systems of records and jurisdiction rests exclusively in the
United States District Courts for matters brought under the provisions
of the Privacy Act. See Bucci v. Department of Education, EEOC Request
Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore, the
Commission finds that the agency properly dismiss claim (c) for failure
to state a claim.
Regarding claim (d), the Commission regulation set forth at 29 C.F.R. �
1614.107(a)(1) states, in pertinent part, that an agency shall dismiss
a complaint which states the same claim that is pending before or has
been decided by the agency or Commission. The Commission determines
that claim (d) is an elaboration of the matter identified in claim (b),
discussed above.
Accordingly, the agency's dismissal of claims (a), (c), and (d) was
proper and is AFFIRMED.
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 (S0900)
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. 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 19, 2005
__________________
Date
1The record reveals that a green badge allows
employees access to classified information while the white badge allows
employees access to nonsensitive areas of the Shipyard and to perform
nonsensitive duties.