0320090054
06-30-2009
__________________, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
__________________,
Petitioner,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 0320090054
MSPB No. PH-0752-09-0072-I-1
DENIAL OF CONSIDERATION
On May 4, 2009, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for
review of the initial decision of the Merit Systems Protection Board
(MSPB or Board), which became final on April 15, 2009, concerning his
claim of discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
Petitioner alleged that he was discriminated against on the bases of race
(African-American), disability (HIV), and reprisal for prior protected EEO
activity when he was placed on indefinite suspension effective November
10, 2008, on the ground that his security clearance was denied. The
indefinite suspension is until petitioner exhausts all his administrative
appeals with the agency on the denial of his security clearance.
Following a hearing, a MSPB Administrative Judge (AJ) issued an initial
decision, which became final, upholding the indefinite suspension.
Citing Board precedent, the AJ found that the MSPB lacked authority
to review claims of discrimination in connection with an indefinite
suspension for failing to maintain a valid security clearance. The AJ
found that the agency's decision to deny, suspend, or revoke a security
clearance is not within the Board's jurisdiction. However the Board
had limited jurisdiction to review that (1) the indefinite suspension
was based on the denial a security clearance, (2) a security clearance
was a requirement of the position, and (3) proper due process procedures
were followed in the indefinite suspension.
Relying on the testimony of an agency human resource specialist, the
AJ found that petitioner's position was non-critical sensitive, meaning
it required a security clearance. The AJ found that proper due process
procedures were followed in the denial of petitioner's security clearance
and the indefinite suspension, and hence he was afforded meaningful
due process with the indefinite suspension. Hence, the AJ upheld the
indefinite suspension.
The Commission has held that where an individual files an appeal
with the MSPB which is dismissed for lack of jurisdiction, the matter
will not be viewed as a "mixed case." Rather, it will be treated as a
"non-mixed" matter and processed accordingly. See Schmitt v. Department
of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth
the policy of the Commission assuming jurisdiction over cases dismissed
by the MSPB for lack of jurisdiction); Phillips v. Department of Army,
EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b).
Where the MSPB dismisses for lack of jurisdiction, the agency must
resume processing the matter from the point processing ceased under
29 C.F.R. Part 1614 (the EEO informal and formal complaints process).
Here, the MSPB found that it lacked jurisdiction to review petitioner's
reprisal and discrimination claims. Accordingly, the agency must resume
processing of the matter in accordance with the Notice to Parties below.
Below is guidance on what matters remain to be processed.
Petitioner argues on petition that his status or job designation
was initially non-sensitive, meaning no clearance was required, but
sometime prior to September 24, 2007, it was changed to requiring a
clearance. He argues this occurred because of his EEO activity, race,
and disability.
Petitioner submits excerpts of a January 30, 2009, transcript of a
hearing with the United States Coast Guard Personnel Security Appeals
Board (PSAB), where he appealed the denial of his security clearance, and
what appears to be a timeline prepared by the PSAB. This documentation
indicates that after petitioner was hired, his yard sent the agency's
security center a hiring package indicating petitioner's position had a
sensitivity of 1, meaning no clearance was required, but sometime before
September 24, 2007, the yard informed the security center that the
position required a clearance. The security center grants and denies
clearances, and it appears it also does suitability determinations on
all employees, including those that don't require a security clearance.
Petitioner's supervisor, J.K., testified that petitioner did not perform
secret or sensitive duties, and if he got a clearance his duties would
not change. However, the record does not show whether he performed his
full range of duties.
The Commission will not review an agency's determination with regard to
the substance of security clearance decision or as to the validity of
the security requirement itself. See Policy Guidance on the Use of the
National Security Exception Contained in � 703 (g) of the Civil Rights
Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989); see also
Department of the Navy v. Egan, 484 U.S. 518 (1987). In the matter herein,
to the extent that petitioner's claim concerns the agency's criteria
that the position to which he occupied required a security clearance
or its determination that he was ineligible for a security clearance,
the Commission finds that we have no jurisdiction over these matters.
See Policy Guidance, supra; Nwokocha v. Department of Defense (Defense
Finance and Accounting Service), EEOC Appeal No. 01960868 (January 27,
1997).
However, the Commission does have jurisdiction to determine whether the
requirement that an individual have a security clearance in order to
occupy a particular position was applied in a non-discriminatory manner.
Below are some illustrations of this principle. See Policy Guidance,
supra., Example 4:
ACME Military Manufacturing has contracts with the federal government
requiring that all ACME employees working on government contracts have
a security clearance. ACME turns down CP, a male, for a job working on
the government contract because he does not have a security clearance.
However, ACME hires a woman to work on the same government contract who
also does not have a security clearance. CP files a discrimination
claim against ACME. ACME invokes the national security exception.
ACME is not entitled to the national security exception in defending
this charge. It is apparent that the CP's lack of a security clearance
is not the real reason for ACME's failure to hire him since it hired a
female who also lacked the required security clearance. The investigator
should investigate to determine whether the employer had a legitimate,
nondiscriminatory reason for its actions.
See also Thierjung v. Department of Defense, Defense Mapping Agency,
EEOC Request No. 05880664 (if complainant claimed that employees who
did not suffer from alcoholism were allowed to remain in sensitive
positions without a security clearance, his complaint would state a
claim); Zimmerman v. National Archives and Record Administration, EEOC
Request No. 05920102 (January 24, 1992) (if complainant alleged that
the agency permitted another individual, who did not have an obsessive
compulsive disorder, to occupy the position from which he was discharged
without first obtaining a top security clearance, his complaint would
state a claim).
Here, petitioner is claiming that he was initially not required to have
a security clearance to occupy and perform his job, but then the agency
initiated the process to grant or deny him a security clearance, and
indefinitely suspended him for discriminatory and retaliatory reasons
when it was denied. The position description for the job, which was
made before petitioner was hired in January 2007, indicated that it
had a sensitivity of 2, meaning it required a security clearance.
Yet there is some suggestion in the materials petitioner submits on
petition that the agency did not initiate the process to obtain or
deny him a security clearance until September 24, 2007. Also, while
the Commission is precluded from reviewing the substance of security
clearance decisions, it has authority to review an agency's decision
to initiate review of a petitioner's security clearance status, as this
decision is not the result of any substantive decision making process.
Chatlin v. Department of the Navy, 05900188 (June 1, 1990). If the
agency first permitted complainant to fill a job that required a security
clearance without having one, and then made him undergo a process to
grant or deny him a clearance and indefinitely suspended him when it
was denied for discriminatory or retaliatory reasons, he would have a
justiciable claim of discrimination and reprisal.
NOTICE TO PARTIES
Petitioner is advised that by operation of 29 C.F.R. � 1614.302(b), the
agency is required to process his claims of reprisal and discrimination
as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.105. The agency
shall notify the petitioner of the right to contact an EEO counselor
within forty-five (45) days of receipt of this decision, and to file and
EEO complaint, subject to 29 C.F.R. � 1614.107. The date on which the
petitioner filed the appeal with the MSPB shall be deemed the date of
initial contact with the EEO counselor.1 Petitioner shall have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within thirty
(30) calendar days of the date that this decision is received.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
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,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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 (Z1008)
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
June 30, 2009
__________________
Date
1 If petitioner has a pending EEO complaint which includes the issue
of being placed on administrative leave because of the denial of his
security clearance, he can request or move to amend that complaint to
add the new claims herein.
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0320090054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0320090054