0120072943
11-09-2007
Dale L. Hillman, Jr, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Dale L. Hillman, Jr,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120072943
Agency No. 2007019
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 25, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. In a complaint dated May
4, 2007, complainant alleged that he was subjected to discrimination on
the basis of disability (Depression) when:
1. Complainant was required to provide confidential medical information on
an agency form SF 86 that resulted in the denial of a security clearance,
which in turn resulted in him being terminated from a position with
the U.S. Army and the denial of various job opportunities with other
employers, both Federal and private.
The agency dismissed the complaint on the grounds that the Commission
does not have the authority to review a security clearance determination,
or the validity of an employer's requirement of a security clearance,
and that such requests fail to state a claim.
On appeal, complainant argues that the agency mis-characterized his
complaint. He maintains that his complaint should be phrased as follows:
"According to the Congressional Rehabilitation Act of 1973, does [the
agency] have the legal right to ask a question regarding a person's
mental disability other than for accommodating a person's disability?"
Complainant argues that he has evidence showing that the decision-making
process regarding his own security clearance denial did not involve
classified matters. He contends that any review of the denial process by
the Commission will not require the disclosure of classified material.
To the extent complainant is not filing a complaint of employment
discrimination based on the specific act or acts of an employer or
potential employer, but is merely seeking legal information, he fails to
state a claim under the EEOC regulations because he does not allege 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). To the extent
complainant is alleging that the requirement that he provide confidential
medical information is discriminatory, or that he was discriminatorily
discharged from and/or not selected for a number of positions,1 we
note that a complaint must be filed against the agency that allegedly
discriminated against the complainant. Complainant indicates that agency
that carried out the allegedly harmful acts is the Department of the Army,
but he filed his complaint against the Office of Personnel Management.
Finally, even assuming complainant had filed with the correct agency
when alleging that the Department of the Army discriminated against him
when he was required to divulge medical information and removed from
his position with that agency effective April 6, 2007, because he did
not have a security clearance, we note that the Commission's authority
to review cases involving security clearances is heavily circumscribed
due to the decision of the Supreme Court in Department of Navy v. Egan,
484 U.S. 518 (1988). In that case the Court held that the MSPB had no
jurisdiction to review the merits of a denial of revocation of a security
clearance in the context of an adverse action premised on the employee's
loss of or failure to obtain a security clearance. We therefore are not
permitted to review the merits of security clearance decisions or the
actual requirements of a clearance itself. Accordingly, the agency's
final decision dismissing complainant's complaint 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
November 9, 2007
__________________
Date
1The record indicates that a number of these positions were with private
contractors. To the extent they were not Federal Government positions,
complainant fails to state a claim.
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0120072943
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072943