Donte L.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

2019002005 (E.E.O.C. Aug. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Donte L.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice,
Agency.

Appeal No. 2019002005

Agency No. OBD-2018-00672

DECISION

On February 28, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 18,
2018, which he received on January 29, 2019, dismissing his complaint of unlawful employment
discrimination in violation of 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Department
of the Navy as an Electronic Engineer, GS-13, at Patuxent River, Maryland.

On August 20, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Department of Justice (DOJ) subjected him to discrimination based on national
origin (Jamaican), sex (male), disability, and reprisal for prior protected EEO activity under the
Rehabilitation Act when on March 29, 2018, DOJ’s Access Review Committee adjudicated his
appeal of the Federal Bureau of Investigation’s (FBI) decision denying him a Top Secret security
clearance by upholding the denial. According to the counselor’s report, while Complainant said he
no longer wished to have future employment with DOJ, he was concerned that DOJ’s denial could
cause the Navy to block his access to a Top Secret clearance from the Department of Defense.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2019002005

2
We take administrative notice of Complainant’s case in Paul D. v. Justice (FBI), EEOC Appeal
No. 0120172253 (Nov. 6, 2018), request for reconsideration denied, EEOC Request No.
2019001905 (June 11, 2019). In its appellate decision the Commission found that Complainant’s
claim that he was discriminated against when the FBI denied him a security clearance on June 21,
2012, and its connected declination to hire him failed to state a claim. Citing EEOC Policy
Guidance on the Use of the 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) (Guidance)
and Navy v. Egan, 484 U.S. 518, 529 (1988), the Commission explained that while the legislative
history of § 703(g) makes it clear that the Commission is not precluded from determining whether
the grant, denial or revocation of a security clearance is conducted in a nondiscriminatory manner,
the Commission does not have jurisdiction to review an agency's determination on the substance
of a security clearance decision.

The FBI’s June 21, 2012 denial of Complainant’s security clearance gave him the right to request
reconsideration, which he exercised. Report of Investigation (ROI) associated with the case in
EEOC Appeal No. 0120172253, Exhs. 21 and 22. On February 14, 2013, the FBI denied
Complainant’s request for reconsideration, and gave him appeal rights to DOJ’s Access Review
Committee, which he exercised by letter dated March 1, 2013. Id., at Exhs. 25, 26; 27, at Bates
Nos. 198 – 199. In correspondence dated April 20, 2017, to an Administrative Judge with the
EEOC, Complainant indicated that because of a hiccup, his appeal to the Access Review
Committee was taken off the hearings calendar, but he was informed on April 20, 2017, that it was
being put back on with an expected hearing date in June or July 2017. Correspondence file
associated with EEOC Appeal No. 0120172253, at Bates Nos. 51 – 52. In his July 2017 appeal
brief for EEOC Appeal No. 0120172253, Complainant represented that he was still in the process
of arranging a hearing with the Access Review Committee. See footnote 1 thereof.

The Agency dismissed Complainant’s EEO complaint for failure to state a claim. It reasoned that
claims of discrimination regarding the merits of an Agency determination to deny a security
clearance are outside EEOC’s jurisdiction. The instant appeal followed.

On appeal, Complainant makes no argument.

ANALYSIS AND FINDINGS

In Paul D., the Commission found that the EEOC did not have jurisdiction over Complainant’s
EEO complaint alleging that the FBI discriminated against him when it denied him a Top Secret
security clearance. In the EEO complaint before us, Complainant is alleging that DOJ’s Access
Review Committee discriminatorily denied his appeal challenging the FBI’s denial. For the same
reason found in Paul D., we find the EEO complaint before us fails to state a claim.

The FAD is AFFIRMED.
2019002005

3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

2019002005

4
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 14, 2019
Date