Louis Pepe, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionFeb 28, 2007
0120064860 (E.E.O.C. Feb. 28, 2007)

0120064860

02-28-2007

Louis Pepe, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.


Louis Pepe,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01200648601

Agency No. HS05ICE001162

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 27, 2006, 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.

In a complaint dated May 1, 2006, complainant alleged that he was

subjected to discrimination on the basis of reprisal for engaging in prior

protected EEO activity under Title VII of the Civil Rights Act of 1964,

when on or about October 3, 2005, in response to a complaint from his

supervisor, agents from the Office of Professional Responsibility (OPR)

and Federal Bureau of Investigation (FBI) directed him to turn over any

FBI documents in his possession, and he was placed on administrative leave

pending the results of an investigation by OPR into his possession of such

documents. The record indicates that during EEO counseling complainant

also complained about the suspension of his security clearance on October

11, 2005, as a result of the investigation initiated on October 3, 2005.

Although not raised in his formal complaint, the agency appears to have

also dismissed this allegation in its final decision.

In its final decision, the agency dismissed the first two allegations

in the complaint (the order to turn over FBI documents and placement on

administrative leave) for failure to initiate EEO counselor contact in a

timely manner pursuant to the requirements of 29 C.F.R. � 1614.105(a)(1).

The agency dismissed the allegation concerning the suspension of

complainant's security clearance for failure to state a claim.

The instant appeal followed.

As an initial matter, the Commission finds that the complaint was

improperly fragmented into three separate allegations, and each examined

by the agency separately for timeliness. A fair reading of the formal

complaint and EEO counseling materials reveals that complainant was

alleging that the investigation, placement on administrative leave and

suspension of his security clearance was one continuous inextricably

intertwined event, that occurred over the span of about a week in October

2005 as a result of alleged unlawful reprisal. Viewed in this manner,

complainant initiated timely EEO counseling on November 23, 2005, as it

was within 45 days of the October 11, 2005 suspension of his security

clearance. Therefore the agency erred in dismissing portions of the

complaint on timeliness grounds.

However, for the same reason, the essence of this complaint is one

dealing with the substance of a security clearance determination, and

should, more properly, be dismissed for failure to state a claim. The

Commission has held that the validity of the requirement of a security

clearance and the substance of a security clearance determination is

not subject to review within the scope of the EEO complaint process.

Thierjung v. Department 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). Accordingly, the agency's final decision dismissing

complainant's complaint is AFFIRMED, albeit on different grounds.

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

February 28, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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2

0120064860

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120064860