0120133393
02-19-2015
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Appeal No. 0120133393
Hearing No. 570-2012-01084X
Agency No. DOD-DISA-12-002
DECISION
On September 19, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final Order dated August 21, 2013, implementing the decision of an EEOC Administrative Judge (AJ) to dismiss 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist at the Agency's Defense Information Systems Agency, Network Services Directorate, in Falls Church, Virginia.
On November 2, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability,1 age (72), and reprisal for prior protected EEO activity (opposition and participation) under Title VII, the Rehabilitation Act, and the ADEA when he was removed effective August 7, 2009.
Following an investigation, Complainant requested a hearing before an EEOC AJ. Thereafter, the AJ granted the Agency's motion to dismiss the complaint. The AJ found that the EEOC lacked jurisdiction to adjudicate removal claims based upon an employee's failure to maintain a security clearance.
The AJ found that pursuant to the requirement that employees who possess security clearances have their continued eligibility validated, the Office of Personnel Management (OPM) completed a security investigation on Complainant (in December 2006), which was forwarded to the Washington Headquarters Service Central Adjudication Facility (WHSCAF) for final adjudication. The AJ found that WHSCAF (in October 2007) requested that Complainant undergo a medical/psychiatric evaluation.
According to the counselor's report, Complainant said his wife came to the Agency and complained that he slapped her, and his supervisor looked into the situation and found that there was an issue regarding anger management. Complainant contends that management discriminatorily gave information to security officials who caused him to lose his security clearance and be removed therefore. In his EEO investigative declaration, Complainant questioned the veracity of management expressing concern about his security clearance because of his alleged violent tendencies, alleged incidents of domestic abuse, or threats to national security.
In a tentative determination, WHSCAF revoked Complainant's clearance because he failed to submit to the psychiatric examination it requested. His security clearance was finally revoked on or about March 30, 2009, and thereafter the Agency removed him for failure to maintain his security clearance. The record reflects that all positions at the Defense Information Systems Agency, including Complainant's, require a clearance at least at the Secret level. The AJ found that while Complainant contended he was discriminatorily ordered to undergo a psychiatric evaluation, the EEOC was not permitted to adjudicate his claim.
On appeal, Complainant argues that he is not requesting that the EEOC review the substance of the decision to revoke his security clearance. Rather, he is alleging that the revocation of his security clearance, which led to his termination, resulted from discriminatory allegations made by non-security professionals -- telling WHSCAF that he should undergo a psychiatric evaluation for alleged violent tendencies.
In opposition to the appeal, the Agency argues that its final order should be affirmed.
ANALYSIS AND FINDINGS
The Commission will not review an agency's determination with regard to the substance of security clearance decision or 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 Egan, the Supreme Court limited the Merit Systems Protection Board's (MSPB) review, when an employee is removed for cause because his required clearance is denied, to whether such cause existed, whether in fact the clearance was denied, and whether transfer to a non-sensitive position was feasible. Id., at 530.
Complainant was represented by counsel when he had EEO counseling and filed his complaint, and the issue he alleged in his complaint was that he was discriminated against when he was removed. The Agency accepted this issue in December 2011, and instructed Complainant that if he did not believe the issue was correctly identified, to notify it within seven calendar days of receipt of the letter. There is no indication he did so. Remedies Complainant sought were consistent with his removal claim -- restoration of his security clearance and reinstatement.
While Complainant argues that non-security management discriminatorily told security professionals who were making a determination on his clearance that he had anger management issues and asked them to conduct a psychiatric evaluation, this was not the issue in his complaint. Accordingly, we need not rule on whether such claims are independently actionable.
We find that Complainant's complaint fails to state a claim. Complainant was removed because he did not maintain a security clearance, as required by his job, and all other jobs at the Defense Information Systems Agency. Given this, since the EEOC does not have jurisdiction to review the denial of Complainant's security clearance, we find his complaint fails to state a claim.
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
February 19, 2015
__________________
Date
1 Complainant raised the basis of disability discrimination in his equal employment opportunity (EEO) investigative affidavit.
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2
0120133393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
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