05980927
11-04-1999
Samuella Galbreath, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Samuella Galbreath v. Department of the Navy
05980927
November 4, 1999
Samuella Galbreath, )
Appellant, )
) Request No. 05980927
v. ) Appeal No. 01976037
) Agency No. 97-66001-010
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
__________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On June 17, 1998, Samuella Galbreath (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Samuella Galbreath v. John H. Dalton,
Secretary, Department of the Navy, EEOC Appeal No. 01976037 (May
22, 1998). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons stated below, appellant's
request is denied. The Commission has decided, however, to reconsider
the previous decision on its on motion.
The issues presented are: (1) whether appellant's request for
reconsideration, with respect to allegation (5), satisfies the
requirements of 29 C.F.R. �1614.407(c); and (2) whether the previous
decision erred by reversing the agency's dismissal of allegation (1).
Appellant filed a formal complaint against the agency on April 21,
1996. Among other things, she alleged that she was the victim of
unlawful employment discrimination on the basis of race (Black) when:
(1) in a meeting held on October 29, 1996, she was notified that the
agency had issued a letter of intent to revoke her security clearance
and her eligibility for assignment to a sensitive position; and (5)
on August 2, 1996, she was issued a "Superior" performance rating and
awarded one continuing point and one bonus point for the performance
rating period of July 1, 1995 through June 30, 1996.<1>
The agency dismissed allegation (1) on the grounds that it failed to
state a claim. According to the agency, the Commission did not have
jurisdiction in this matter because it concerned a security clearance
determination. The agency dismissed allegation (5) as untimely, since
appellant did not contact an EEO counselor until November 5, 1996. On
appeal, appellant argued, with respect to allegation (1), that "I believe
that I have been discriminated [against] because of race, Black. They
made a medical decision that I was unworthy to perform my duties because
of my concerned [sic] behavior in January 1996. This was prior to their
receipt of any doctor's report." With regard to allegation (5), appellant
intimated that she sought EEO counseling in an untimely manner because
she feared retaliation. The previous decision reversed the dismissal of
allegation (1) and affirmed the dismissal of allegation (5).
In her request to reconsider (RTR), appellant, in large part, argued the
merits of allegation (5). She did indicate, however, that "my main focus
was on sorting out what was transpiring with my employment, consulting
a doctor, and my livelihood. Being preoccupied and convoluted [sic]
with these issues interfered with the submission of my performance
rating complaint." The agency opposed appellant's RTR. According to
the agency, the previous decision, with respect to allegation (5), was
correctly decided and that appellant failed to satisfy the criteria of
29 C.F.R. �1614.407(c).
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not merely a form
of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Instead, it is an opportunity to submit newly
discovered evidence, not previously available; to establish substantive
error in a previous decision; or to explain why the previous decision
will have effects beyond the case at hand. Lyke v. USPS, EEOC Request
No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
appellant's RTR does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). With respect to allegation (5), we also find
no justification for reconsidering the previous decision on our own
motion. The Commission has previously held that fear of reprisal is not a
justification for contacting an EEO counselor in an untimely manner. See
Duncan v. Department of Veterans Affairs, EEOC Request No. 05970315
(July 10, 1998); Parker v. Department of Veterans Affairs, EEOC Request
No. 05940436 (February 9, 1995); Kovarik v. Department of Defense,
EEOC Request No. 05930898 (December 9, 1993). Furthermore, although
the record indicates that appellant, for a period of time in 1996, was
under a great deal of stress and had to be medically evaluated, we find
no persuasive evidence that she was so incapacitated by her condition
that she was unable to meet the regulatory time limits. See Davis
v. United States Postal Service, EEOC Request No. 05980475 (August 6,
1998); Crear v. United States Postal Service, EEOC Request No. 05920700
(October 29, 1992); and Zelmer v. United States Postal Service, EEOC
Request No. 05890164 (March 8, 1989). Finally, although other allegations
in appellant's complaint were timely raised and will be processed, we
do not find that allegation (5) should be considered timely under the
continuing violation theory. The Commission has held that a continuing
violation does not exist when, as here, the act complained of is by itself
capable of triggering a reasonable suspicion of discrimination. Ferguson
v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999).
Although the agency did not contest the previous decision's determination
regarding allegation (1), we have decided to reconsider this matter on our
own motion in order to correct a legal error. 29 C.F.R. �1614.407(a). The
record indicates that appellant, a Computer Specialist, DS-0334-03,
held a security clearance which allowed her access to classified and
sensitive records. In the Summer of 1995, she began suspecting that
she was being followed home after work and that people were gaining
access to her apartment. According to appellant, these individuals were
planting listening devices and were watching her home. She informed agency
officials of her concerns in January 1996. After an investigation, which
did not confirm appellant's allegations, management decided that her
behavior required that the Department of the Navy Central Adjudication
Facility (DONCAF) be notified. In April 1996, DONCAF, the department which
determines whether individuals are eligible to hold security clearances,
requested that a physician examine appellant. In July and September
1996, the agency forwarded medical information to DONCAF. In October
1996, DONCAF notified appellant that her security clearance would be
revoked.<2>
Upon review, we agree with the agency's dismissal of allegation
(1). The Commission has held that it has no authority to review a
security clearance determination or the validity of an employer's
requirement of a security clearance. The Commission is, however, not
precluded from determining whether the grant, denial, or revocation of a
security clearance was conducted in a discriminatory manner. See Lyons
v. Department of the Navy, EEOC Request No. 05890839 (March 22, 1990);
Thierjung v, Department of Defense, EEOC Request No. 05880664 (November 2,
1989). See also Department of the Navy v. Egan, 484 U.S. 518 (1988).
Appellant maintained that she was discriminated against because the
revocation of her security clearance was made prior to the agency
receiving a medical report. Although this contention appears to be
disputed by the record, we find that her concerns fall squarely within the
rubric of the type of security clearance determination that is beyond
the Commission's jurisdiction. Schroeder v. Department of Defense,
EEOC Request No. 05930248 (April 14, 1994). Since appellant appears to
be challenging the method by which the agency arrived at its decision,
the dismissal of allegation (1) was proper.
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to deny the
request. The Commission, however, has decided to reconsider the previous
decision on its own motion, pursuant to 29 C.F.R. �1614.407(a). The
decision in EEOC Appeal No. 01976037 (May 22, 1998) is REVERSED, in part,
and AFFIRMED, in part. The agency's final decision is AFFIRMED. There
is no further right of administrative appeal from a decision of the
Commission on a request to reconsider.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Nov. 4, 1999
Date Frances M. Hart
Executive Officer
1Allegations (2)-(4) were accepted for investigation.
2As noted by the previous decision, appellant's security clearance was
restored in March 1997.