01a44011
11-04-2004
Minnie L. Carr, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Minnie L. Carr v. Department of the Army
01A44011
November 4, 2004
.
Minnie L. Carr,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A44011
Agency No. CEHEC04FEB0014
DECISION
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.
On February 19, 2004, complainant contacted an EEO Counselor and alleged
that she was subjected to discrimination on the bases of sex, disability,
and in reprisal for prior EEO activity. The EEO Counselor's Report
identified the matter for which complainant underwent EEO counseling as
consisting of the claim that on February 18, 2004, complainant learned
that her security clearance had expired and that a request submitted
in January 2004, to have her security clearance reinstated had not
been effected. The EEO Counselor's Report stated that as a remedy,
complainant wanted her �clearance reinstated immediately� and that a
named agency official be her rater. The record also contains an EEO
Office Contact Sheet wherein complainant stated that as a remedy, she
�wants a clearance and [a named agency official] to be rater.� Informal
efforts to resolve complainant's concerns were unsuccessful.
On March 31, 2004, complainant filed the instant formal complaint.
Therein, complainant raised the same matter for which she underwent EEO
counseling as discussed above.
In a final decision dated April 27, 2004, the agency dismissed
complainant's complaint for failure to state a claim.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because the Commission is precluded from reviewing the
validity of the requirement of a security clearance and the substance of
a security clearance determination. See 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 for failure to state a claim is AFFIRMED.
Because we affirm the agency's dismissal for the reason stated herein, we
find it unnecessary to address the agency's alternative dismissal 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
November 4, 2004
__________________
Date