0520110592
12-20-2011
Erik J. Saracino, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Erik J. Saracino,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Request No. 0520110592
Appeal No. 0120111365
Agency No. NRC-11-03
DENIAL
The Agency timely requested reconsideration of the decision in Erik
J. Saracino v. Nuclear Regulatory Commission, EEOC Appeal No. 0120111365
(June 16, 2011). 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).
BACKGROUND
In the appellate decision, Complainant, a former Special Agent with
the Agency, learned that management had provided negative information
to an investigator regarding his security clearance for a position
at another agency, NASA. As a result of the negative information,
NASA held Complainant’s security clearance decision in abeyance.
Complainant believed that management made the false and derogatory
statements in retaliation for his prior EEO activity, engaged in while he
was still an employee of the Agency. The Agency dismissed Complainant’s
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. The Agency maintained that Complainant alleged discrimination with
respect to statements provided to NASA pursuant to a security clearance
determination and that the EEOC did not have jurisdiction over security
clearance determinations. The Commission however, found that Complainant
had presented a cognizable claim of unlawful retaliation.
REQUEST FOR RECONSIDERATION
In its request for reconsideration the Agency maintains that the
Commission erred in reversing its final decision. The Agency maintains
that the previous decision overruled prior EEOC precedent and seriously
undermines national security interests. Specifically, the Agency
maintains that claims of retaliation arising out of statements made during
the course of a security clearance investigation are not reviewable.
The Agency maintains that the statements made against Complainant
were not a negative job reference, but were made to an independent OPM
investigator as part of a top secret security clearance investigation
after Complainant was already employed by NASA. The Agency maintains that
the distinction between whether Complainant’s former supervisor made
a negative reference in Complainant’s application for a non-Agency
position or whether Complainant’s former supervisor made comments
during the course of a security clearance investigation is determinative.
FINDINGS AND ANALYSIS
After reviewing 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. We find that the Agency has not shown that 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. Contrary
to the Agency’s assertions, the prior decision did not overturn
our case precedent concerning security clearance determinations.
The prior decision, however, recognizes that, in the instant case,
we are reviewing whether Complainant was subjected to retaliation by
a former employer; an employer whom we note was not involved with the
determination of the security clearance nor did it conduct the security
clearance investigation. We are not reviewing the substance of the
security clearance decision or reviewing the validity of the security
clearance requirement itself. Accordingly, the decision in EEOC Appeal
No. 0120111365 remains the Commission’s decision. There is no further
right of administrative appeal on the decision of the Commission on
this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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
_12/20/11_________________
Date
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0520110592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110592