U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Markus C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2022004363 Agency No. HS-TSA-01983-2022 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 26, 2022, dismissing his complaint alleging 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 applicant for the position of Transportation Security Officer at the Agency’s Transportation Security Administration facility in Newark, New Jersey. On June 14, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for prior protected EEO activity when, on March 14, 2022, the Agency informed him that he did not pass the security clearance for the Transportation Security Officer position. On July 26, 2022, the Agency dismissed Complainant’s complaint, pursuant to C.F.R. § 1614.107(a), for failure to state a claim, arguing the Commission is precluded from reviewing the substance and validity of an employer’s security clearance process. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022004363 2 Complainant appealed the Agency’s decision to the Commission. He did not submit a brief or statement with his appeal. In opposition to the appeal, the Agency argues that its decision should be affirmed. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he has been discriminated against by that agency because of race, color, religion, sex, national origin, age, reprisal or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. The Commission will not review an agency's determination regarding the substance of a security clearance decision. See Rezaee v. Department of the Air Force, EEOC Appeal No. 01A60451 (April 25, 2006) (citing Policy Guidance on the Use of National Security Exception Contained in § 703(g) of Title VII of the Civil Rights Act of 1964, as amended (EEOC National Security Guidance), EEOC Notice No. N-915-041 (May 1, 1989)); Carr v. Department of the Army, EEOC Appeal No. 01A44011 (November 4, 2004) (citing EEOC National Security Guidance); and Thierjung v. Department of Defense, EEOC Request No. 05880664 (November 2, 1989). A fair reading of the record shows that Complainant contests the security clearance investigator’s interpretation of information in his SF-86. Specifically, Complainant challenges the security clearance investigator’s finding that he had financial issues because he failed to disclose a debt in the financial section of his SF-86. Complainant argues that the security investigator’s finding is flawed because the debt does not appear in his credit report. In addition, Complainant challenges the security clearance investigator’s finding that he had employment issues because in his SF-86 Complainant indicated that he had previously been terminated from federal employment. Complainant argues the security investigator’s finding on his employment history is flawed because he was previously terminated from federal employment due to unlawful reprisal and discrimination. Complainant is initiating a review of the substance of the security clearance decision. As discussed above the Commission will not review substantive determinations in the security clearance process. Id. Furthermore, the Commission has repeatedly held that once statements gathered during a security clearance investigation are included in a security clearance investigative report, they are “squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction.” Schroeder v. Department of Defense, EEOC Request No. 05930248 (April 14, 1994). Although Complainant disputes the validity of the security investigator’s findings about his alleged debt and former employment, we find that his concerns falls squarely within the rubric of the type of security clearance determination that is beyond our jurisdiction. 2022004363 3 CONCLUSION Accordingly, the Agency's decision to dismiss the complaint for failure to state a claim is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2022004363 4 Any supporting documentation must be submitted together with the 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 14, 2022 Date
