0120142542
05-01-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142542
Agency No. 14-42158-00210
DECISION
On May 20, 2014, Complainant filed a timely1 appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 15, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an indefinitely suspended Marine Machinery Mechanic at the Agency's Norfolk Naval Shipyard in Portsmouth, Virginia.
On February 19, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his religion (Islam) when, following an investigation by the Department of the Navy Central Adjudication Facility (DoNCAF), he received his final notice dated October 22, 2013, of the revocation of his security clearance and eligibility for assignment to a sensitive position, resulting in his termination effective January 10, 2014.
In Complainant v. Department of the Navy, EEOC Appeal No. 0120122970 (Dec. 18, 2012), the EEOC affirmed the Agency's dismissal of Complainant's prior complaint alleging that he was discriminated against based on his religion when: (1) on December 17, 2010, the Agency indefinitely suspended him for failure to meet a condition of employment, i.e., he was ineligible to occupy a sensitive position, and (2) on March 6, 2012, he received a letter dated October 19, 2011, from DoNCAF notifying him of the intent to revoke his eligibility for a security clearance and assignment to a sensitive position.
In the October 19, 2011 letter, DoNCAF referred to the reasons it made this preliminary decision. Among them was that in February 2011, Complainant signed a statement indicating he was not a citizen of the United States government, he was not a citizen governed under naturalization or immigration legalities, that he recognized his citizenship as Moorish American or Moorish, and that he would not submit to foreign jurisdiction. This was a statement of faith. Other reasons included on August 25, 2010, having possession of a camera cell phone in a restricted area at Norfolk Naval Shipyard, and various criminal and traffic charges.
The EEOC affirmed the Agency's dismissal of Complainant's prior complaint. With regard to issue 1, the EEOC recounted the following. In December 2010, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) challenging his indefinite employment suspension. In its April 2011 initial decision, the MSPB affirmed the indefinite suspension. In so doing it cited Department of the Navy v. Egan, 484 U.S. 518 (1988) for the proposition that the MSPB lacked authority to review the underlying merits of an agency's suspension of an employee's security access. In upholding the employment suspension, the MSPB found Complainant's position required a security clearance, his security access was suspended, his employment was indefinitely suspended because of the suspension of his security access, and he had due process regarding the indefinite employment suspension. Complainant appealed the MSPB's decision to the United States Court of Appeals for the Federal Circuit. In Fuller v. Department of the Navy, 465 Fed.Appx. 949, 2012 WL 833666 (Fed. Cir. Feb. 13, 2012), the Court upheld the MSPB. In so doing, the Court observed that the MSPB may not review the merits of the underlying security clearance determination upon which an adverse action (i.e., employment suspension) is based. The Court mostly tracked and agreed with the MSPB's reasoning. The EEOC affirmed the dismissal of issue 1 because it had already been adjudicated - was res judicata.
In his prior appeal regarding issue 2, Complainant enclosed the DoNCAF decision notifying him of its decision, effective August 17, 2012, to finally revoke his security clearance and eligibility for assignment to a sensitive decision. Noting that issue 2 concerned the preliminary step taken on October 19, 2011, which was finalized effective August 17, 2012, the EEOC exercised its discretion to rule on the final decision. It noted that once a decision is made it merges with the prior proposal or preliminary step to take the personnel action. Citing various cases and its policy guidance, the EEOC ruled that the Commission will not review an agency's determination with regard to the substance of a security clearance decision. It ruled that while the Commission was precluded from reviewing the substance of a security clearance, it was not precluded from determining whether the requirement to maintain one in order to occupy a particular position was applied in a nondiscriminatory manner. The EEOC found that a fair reading Complainant's complaint did not suggest he alleged a discriminatory requirement to maintain a security clearance. Accordingly, it found that issue 2 (which included the decision effective August 17, 2012) failed to state a claim.
After receiving the final decision, effective August 17, 2012, to revoke his eligibility for a security clearance and assignment to a sensitive position, Complainant filed an appeal with the Personnel Security Appeals Board, which included the right to request a personal appearance before a Defense Office of Hearings and Appeals (DOHA) Administrative Judge. In a letter to Complainant dated October 22, 2013, the Commander of the Norfolk Naval Shipyard advised that the Shipyard was notified by the Personnel Security Appeal Board Administrative Judge that he failed to attend the personal appointment with the Administrative Judge. The Commander advised Complainant that for this reason, DoDCAF's August 17, 2012 decision was final, and the appeal process was closed.
On December 2, 2013, the Agency proposed Complainant's removal, and then decided to remove him effective January 10, 2014. The Agency removed Complainant on the ground that his job required him to have a security clearance and he did not have one, failing to meet this condition of employment. In the removal letter, the deciding official wrote that he considered reassigning Complainant to a position which did not require access to classified or sensitive information and/or areas, but none were available.
The Agency dismissed Complainant's complaint for failure to state a claim. It reasoned that the Commission has held that it has no authority to review the substance of security clearance determinations.
The instant appeal followed.
ANALYSIS AND FINDINGS
Complainant alleges that the Agency discriminated against him based on his religion (Islam) when he received the October 22, 2013 final notice of the revocation of his security clearance and eligibility for assignment to a sensitive position, resulting in his termination effective January 10, 2014.
The EEOC has already ruled that Complainant's claim that DoNCAF's initial decision, effective August 17, 2012, to revoke his security clearance and eligibility for assignment to a sensitive decision failed to state a claim. The EEOC ruled it will not review an agency's determination with regard to the substance of a security clearance decision. The final notice dated October 22, 2013, merely dismissed Complainant's appeal of the DoNCAF decision because he failed to attend the personal appointment with the DOHA Administrative Judge. For the same reasons as in EEOC Appeal No. 0120122970 (Dec. 18, 2012), we find that the decision to uphold DoNCAF's decision fails to state a claim.
Complainant was removed because he no longer had a security clearance, which was required by his position. As long as the Agency nondiscriminatorily applied the requirement of a security clearance for Complainant's position, he has failed to state a claim regarding his removal. Thierjung v. Department of Defense, EEOC Request No. 05880664 (Nov. 2, 1989).
A review of the complaint and counselor's report does not reveal that Complainant alleged the Agency discriminatorily applied the requirement of a security clearance for his position.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 1, 2015
__________________
Date
1 Complainant's appeal to the EEOC was postmarked May 20, 2014. Complainant received the appeal on April 24, 2014. There was a delay in the EEOC receiving the appeal because in its FAD the Agency provided Complainant an outdated address for filing appeals with the EEOC.
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0120142542
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142542