01A02195
05-16-2001
Greg Mathieson, Complainant, v. Keith R. Hall, Director, National Reconnaissance Office, Agency.
Greg Mathieson v. National Reconnaissance Office
01A02195
05-16-01
.
Greg Mathieson,
Complainant,
v.
Keith R. Hall,
Director,
National Reconnaissance Office,
Agency.
Appeal No. 01A02195
Agency No. 2000-01
DECISION
Greg Mathieson (complainant) filed an appeal with the Equal Employment
Opportunity Commission (Commission) from a final agency decision (FAD)
dated December 17, 1999, concerning 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. (1994 & Supp. IV 1999).
The appeal was postmarked January 18, 2000. Accordingly, the appeal is
timely pursuant to 29 C.F.R. � 1614.402(a), and is accepted in accordance
with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
On October 4, 1999, complainant filed a formal complainant alleging that
he had been harassed on June 4 and 22, 1999 when:
He was called to meet with a security investigator without being given
a reason for the meeting;
No paperwork was kept or presented to him or his security officer;
During the entire course of the meetings, he was given the impression,
and feared reprisal (for testifying before a grand jury) in that if
he did not fully comply with the investigator's demands, he could lose
his clearance and his job;
He was never informed as to what extent he had to comply without
fear of reprisal or the extent his privacy rights were being invaded,
despite asking numerous supervisors at Vance, Boeing and the Office of
the Inspector General;
He was not allowed to contact the investigator's supervisor or receive
the name and number of someone who could provide these answers;
He was repeatedly asked about sensitive matters concerning other
U.S. government agencies that he did not feel the investigator had a
need to know.
Complainant further stated that he felt harassed because the investigator
demanded that he produce tax forms and numerous other documents which
the investigator could have gotten through official channels. Complainant
stated that he did not believe that these documents were actually reviewed
and that the actual reason he was subjected to the reinvestigation was
because he testified before the grand jury and in a subsequent trial
under the direction of the Office of the Independent Counsel (OIC).
In a FAD dated December 17, 1999, the agency dismissed complainant's
complaint for failure to state a claim. In its reasoning the agency
stated that the Commission does not have jurisdiction over the merits
of an agency's security clearance determinations, including whether
to initiate an investigation, as long as the agency has applied the
requirement for a security clearance in a nondiscriminatory manner to
those inside and outside of complainant's class. The agency further
noted that complainant, like all security guards, must possess a security
clearance and is subject to regular and/or random reinvestigation.
In its comments on appeal, the agency also noted that complainant failed
to allege that he had been retaliated against for engaging in protected
activity under either the opposition clause or the participation clause
of Title VII and had therefore failed to state a claim pursuant to 29
C.F.R. � 1614.107 and 29 C.F.R. � 1614.103.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that individual and class
complaints of employment discrimination and retaliation prohibited by
Title VII (discrimination on the bases of race, color, religion, sex and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least 40 years of age), the Rehabilitation
Act (discrimination on the basis of disability), or the Equal Pay Act
(sex-based wage discrimination) shall be processed in accordance with
this part. EEOC Regulation 29 C.F.R. � 1614.101(b) provides that
no person shall be subject to retaliation for opposing any practice
made unlawful by Title VII of the Civil Rights Act (Title VII) (42
U.S.C. �2000e et seq.), the Age Discrimination in Employment Act of 1967
(ADEA) (29 U.S.C. � 621 et seq.), the Equal Pay Act (29 U.S.C. � 206(d) or
the Rehabilitation Act (29 U.S.C. � 791 et seq.) or for participating in
any stage of administrative or judicial proceedings under these statutes.
In his formal complaint, complainant alleged that he was the victim
of unlawful employment discrimination on the basis of reprisal.
Specifically, complainant alleged that the actual reason he was
subjected to the reinvestigation was because he testified before the
grand jury and a subsequent trial for perjury under the direction of
the Office of Independent Counsel (OIC). However, Complainant provided
no information establishing that this reprisal claim was related to any
prior EEO complaints or other prior protected activity in which he had
been involved. Further, we find that the record contains no evidence
showing that complainant engaged in any prior protected activity, and
complainant does not contend so. Accordingly, the agency's decision
to dismiss complainant's claim of reprisal was proper.<1>
CONCLUSION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint for failure to state a claim. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
____05-16-01______________
Date
1As the agency has presented an independent ground for dismissal, the
Commission need not reach the issue of whether the reinvestigation for
complainant's security clearance was applied in a nondiscriminatory
manner.