0520100072
01-13-2011
Thomas A. Miller, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Thomas A. Miller,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Request No. 0520100072
Appeal No. 0120073904
Agency No. DFAS
DENIAL
Complainant requested reconsideration of the decision in Thomas A. Miller
v. Department of Defense, EEOC Appeal No. 0120073904 (February 26, 2009).
EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where
the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Initially, the Commission notes that Complainant's request for
reconsideration is untimely. The record reveals that due to a clerical
error the appellate decision was reissued on August 21, 2009. Complainant
however did not file his request for reconsideration until October
16, 2009. While the request is untimely, the Commission finds that
Complainant has presented an adequate justification for extending the
time limitation period. Specifically, Complainant has shown that he did
not receive the Commission's decision due to his deployment to Kabul,
Afghanistan. Accordingly, the Commission will address Complainant's
request for reconsideration.
BACKGROUND
In the appellate decision Complainant alleged that he was subjected to
discrimination on the basis of national origin (Canadian) when, on May 31,
2007, he received notification from the Washington Headquarters Service,
Consolidated Adjudication Facility, that his security clearance appeal
was denied. The Agency dismissed Complainant's complaint finding that
Complainant failed to establish any present direct, personal deprivation
by the Agency. The Commission found that the Agency had properly
dismissed Complainant's complaint for failure to state a claim because
the Commission is precluded from reviewing the validity of a security
clearance determination.
REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant contends that he
did not submit a statement on appeal because he was told that he did
not need one. Complainant explains that after receiving a tentative
job offer on June 27, 2005, he received an email indicating that the
offer of employment had been withdrawn. Complainant indicates that he
was given no explanation for the withdrawal of the offer until April
11, 2006. At which time he learned that he had been found ineligible
for the position due to unresolved security issues regarding foreign
connections. Complainant maintains that it took over a year for an
investigation to be commenced. Complainant indicates that he can not
understand how he could be found ineligible for the position in question
when he has already held a higher level position for the last 13 years.
Complainant asserts that his rights have been intentionally violated as
a veteran in order for Agency officials to hire their friends, family,
and people from the local community.
Complainant maintains that no hiring agency should take as long to
investigate a security matter. He also maintains that the Agency's
actions have impeded his ability to continue his federal career.
In closing, Complainant contends that he would have never resigned from
his position and uprooted his family to the location of the position
had he known that he would have been found ineligible.
ANALYSIS AND FINDINGS
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that Complainant has failed to show
the appellate decision involved a clearly erroneous interpretation
of material fact or law; or that the appellate decision will have
a substantial impact on the policies, practices, or operations of
the agency. The Commission finds, among other things, that although
Complainant may very well believe that the Agency took an abnormally
long time to process his security review, as stated in the appellate
decision, the Commission is precluded from reviewing the validity of
security clearance determinations. See Thierjung v. Department of
Defense (Defense Mapping Agency), EEOC Request Nos. 05880664, 05870161
(November 2, 1989); see also Policy Guidance on the Use of National
Security Exception contained in Section 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 decision in EEOC Appeal No. 0120073904 must remain
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
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
_1/13/11_________________
Date
2
0520100072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100072