0120103010
10-07-2010
Derrick L. Bynum, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Secret Service), Agency.
Derrick L. Bynum,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Secret Service),
Agency.
Appeal No. 0120103010
Hearing No. 570-2010-00400X
Agency No. HS08USSS011639
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 1, 2010, 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
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the basis of race (African-American) when, on September 18, 2008, Complainant was removed from the Uniformed Division 0fficer Training at the Federal Law Enforcement Training Center and was subsequently forced to resign in lieu of termination. The complaint was accepted for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The Agency moved for dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency asserted that Complainant challenged the Agency's request that he either resign or face termination which was the result of a security clearance background investigation. Specifically, the Agency argued that the Commission is precluded from reviewing the substance of a security clearance determination, and therefore, a complaint regarding the resignation based on the Agency's unfavorable security review fails to constitute an actionable claim of employment discrimination.
The AJ granted the Agency's motion to dismiss finding that Complainant challenged the results of the background investigation. As such, the AJ determined that the matter was outside of the Commission's jurisdiction. Therefore, the AJ dismissed the complaint. The Agency issued its final order implementing the AJ's decision.
Complainant appealed. He asserted that his race was a deciding factor in why he was denied employment and the reason he was not permitted to clear his name.
ANALYSIS AND FINDINGS
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. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age 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. Dep't. of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission will not review the validity of the requirement of a security clearance and the substance of a security clearance determination. Thierjung v. Dep't. of Defense (Defense Mapping Agency), EEOC Request No. 05880664 (November 2, 1989); see also "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 Notice No. N-915-041 (May 1, 1989). However, the Commission is not precluded from reviewing whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner. Schroeder v. Dep't. of Defense (Defense Mapping Agency), EEOC Request No. 05930248 (April 14, 1994); Lyons v. Dep't. of the Navy, EEOC Request No. 05890839 (March 22, 1990).
Here, we determine that the AJ construed Complainant's claim as merely a challenge to the validity and substance of the security clearance determination. A review of the record confirms, however, that Complainant claimed that the Agency treated him differently because of his race, when the Agency failed to provide him with an opportunity to explain the situation and forced him to resign in lieu of termination. The Commission finds that the issue of Complainant's forced resignation or constructive discharge addresses a claim of personal injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't. of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, the Agency's final order adopting the AJ's decision is VACATED and the matter is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Washington Field Office, the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
October 7, 2010
__________________
Date
2
0120103010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103010