0120122970
12-18-2012
LeRon J. Fuller Bey, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
LeRon J. Fuller Bey,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122970
Agency No. DON-12-42158-01627
DECISION
On July 12, 2012, Complainant filed a timely appeal with this Commission from the Agency's decision dated June 8, 2012, and mailed to him on June 21, 2012, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Marine Machinery Mechanic at the Agency's Norfolk Naval Shipyard in Portsmouth, Virginia.
Complainant filed a formal complaint dated May 21, 2012, which the Agency defined as alleging that it discriminated against him based on religion (Islamism) when:
1. On [December 17, 2010] his employment was indefinitely suspended for failure to meet a condition of employment, i.e., ineligibility to occupy a sensitive position; and
2. On March 6, 2012, he received a letter dated October 19, 2011, from the Agency's Central Adjudication Facility (CAF) notifying him of intent to revoke his eligibility for a security clearance and assignment to a sensitive position.
The Agency dismissed issue 1 because the matter was previously adjudicated by the Merit Systems Protection Board (MSPB). 29 C.F.R. � 1614.107(a)(4). It dismissed issue 2 for alleging a proposal to take a personnel action, or other preliminary step to taking a personnel action. 29 C.F.R. � 1614107(a)(5). It also dismissed all or part of issue 2 on the grounds that the Commission does not have authority to review the substance of security clearance determinations.
By correspondence dated November 9, 2010, the Commander of the Norfolk Naval Shipyard notified Complainant that due to derogatory information his access to classified and sensitive information was immediately suspended pending CAF's adjudication of his clearance eligibility. Effective December 17, 2010, the Agency indefinitely suspended Complainant's employment for failure to meet a condition of his employment at the Norfolk Naval Shipyard, i.e., ineligibility to occupy a sensitive position. This referred to the November 9, 2010, correspondence by the Commander. The Agency advised Complainant that his indefinite employment suspension would be until CAF made a decision on his security clearance, and of appeal rights in the event of a negative decision by CAF.
In December 2010, Complainant filed appeal with the MSPB challenging his indefinite employment suspension. In its April 2011 initial decision the MSPB affirmed the indefinite employment suspension. In so doing it cited Department of the Navy v. Egan, 484 U.S. 518 (1988) for the proposition that the MSPB lacks authority to review the underlying merits of an agency's suspension of an employee's security access. In upholding the employment suspension, the MSPB found Complainant's position required a security clearance, his security access was suspended, his employment was indefinitely suspended because of the suspension of his security access, and he had due process regarding the indefinite employment suspension.
Complainant appealed MSPB's decision to the United States Court of Appeals for the Federal Circuit. In Fuller v. Department of the Navy, 465 Fed.Appx. 949, 2012 WL 833666 (Fed. Cir. Feb. 13, 2012) the Court upheld the MSPB. In so doing the Court observed that the MSPB may not review the merits of the underlying security clearance determination upon which an adverse action (i.e., employment suspension) is based. The Court mostly tracked and agreed with the MSPB's reasoning.
By letter dated October 19, 2011, the Agency's CAF notified Complainant of its intent to revoke his eligibility for a security clearance and assignment to a sensitive position. It indicated this was a preliminary decision and that Complainant may respond in writing. Among other reasons, CAF cited that in February 2011, Complainant signed a statement indicating he was not a citizen of the United States government, that he recognized his citizenship as Moorish American or Moorish, and that he would not submit to foreign jurisdiction. This was a statement of faith.
ANALYSIS AND FINDINGS
The Agency properly dismissed issue 1. The United States Court of Appeals for the Federal Circuit affirmed the Agency's action of indefinitely suspending Complainant. Accordingly, issue 1 has already been adjudicated -- is res judicata.1
Issue 2 regards CAF notifying Complainant by letter dated October 19, 2011, that it made a preliminary decision to permanently revoke his eligibility for a security clearance and assignment to a sensitive position.
With his later appeal correspondence Complainant enclosed a CAF letter notifying him of its decision, effective August 17, 2012, to finally revoke his security clearance and eligibility for assignment to a sensitive decision. While Complainant wrote this was a cause of his termination, it is not clear if his termination has been actually occurred, or is still pending.2 Any termination matter is not before us at this time because it would give rise to a new claim which cannot be initially raised in an appeal.
While the Agency properly dismissed issue 2 for being a proposal to take a personnel action, or other preliminary step to taking a personnel action, once the decision is made it merges with the proposed action. Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997). Because there is no indication in the record that Complainant challenged the above CAF decision on the proposed matter in another case, and there is enough information in the record to procedurally rule on it, we read Complainant's complaint to include CAF's decision.
The Commission will not review an agency's determination with regard to the substance of security clearance decision. 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 (1988); Office of Personnel Management v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012). While the Commission is precluded from reviewing the substance of a security clearance, it is not precluded from determining whether the requirement to maintain one in order to occupy a particular position was applied in a nondiscriminatory manner. See Thierjung v. Defense Mapping Agency, EEOC Request No. 05880664 (November 2, 1989); Fields v. Dep't of Defense, EEOC Request No. 05930468 (December 23, 1993); see also Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 0720060035 (July 28, 2009), citing Okuma v. Dep't of the Navy, EEOC Appeal No. 01A31383 (October 14, 2003); Lyons v. Dep't of the Navy, EEOC Request No. 05890839 (Mar. 22, 1990). A fair reading of the complaint in this matter, however, does not suggest that Complainant is alleging a discriminatory requirement to maintain a security clearance. Therefore, applying the above, we find issue 2 fails to state a claim.
The FAD 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
December 18, 2012
__________________
Date
1 On appeal, Complainant initially wrote that his appeal was solely based on CAF's letter of intent, which explicitly implicated his religious beliefs, and his complaint was never based on his indefinite suspension status or what caused it. In later correspondence he backed off this, arguing that his indefinite suspension should be lifted. The Agency argues that this later correspondence is untimely, and should not be considered. While it was untimely, we exercise our discretion to consider it.
2 For example, the indefinite suspension decision advised that if CAF decided to deny his clearance, he could file an appeal which would maintain his suspension status.
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0120122970
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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