0120064860
02-28-2007
Louis Pepe, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Louis Pepe,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200648601
Agency No. HS05ICE001162
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 27, 2006, 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.
In a complaint dated May 1, 2006, complainant alleged that he was
subjected to discrimination on the basis of reprisal for engaging in prior
protected EEO activity under Title VII of the Civil Rights Act of 1964,
when on or about October 3, 2005, in response to a complaint from his
supervisor, agents from the Office of Professional Responsibility (OPR)
and Federal Bureau of Investigation (FBI) directed him to turn over any
FBI documents in his possession, and he was placed on administrative leave
pending the results of an investigation by OPR into his possession of such
documents. The record indicates that during EEO counseling complainant
also complained about the suspension of his security clearance on October
11, 2005, as a result of the investigation initiated on October 3, 2005.
Although not raised in his formal complaint, the agency appears to have
also dismissed this allegation in its final decision.
In its final decision, the agency dismissed the first two allegations
in the complaint (the order to turn over FBI documents and placement on
administrative leave) for failure to initiate EEO counselor contact in a
timely manner pursuant to the requirements of 29 C.F.R. � 1614.105(a)(1).
The agency dismissed the allegation concerning the suspension of
complainant's security clearance for failure to state a claim.
The instant appeal followed.
As an initial matter, the Commission finds that the complaint was
improperly fragmented into three separate allegations, and each examined
by the agency separately for timeliness. A fair reading of the formal
complaint and EEO counseling materials reveals that complainant was
alleging that the investigation, placement on administrative leave and
suspension of his security clearance was one continuous inextricably
intertwined event, that occurred over the span of about a week in October
2005 as a result of alleged unlawful reprisal. Viewed in this manner,
complainant initiated timely EEO counseling on November 23, 2005, as it
was within 45 days of the October 11, 2005 suspension of his security
clearance. Therefore the agency erred in dismissing portions of the
complaint on timeliness grounds.
However, for the same reason, the essence of this complaint is one
dealing with the substance of a security clearance determination, and
should, more properly, be dismissed for failure to state a claim. The
Commission has held that the validity of the requirement of a security
clearance and the substance of a security clearance determination is
not subject to review within the scope of the EEO complaint process.
Thierjung v. Department of Defense (Defense Mapping Agency), EEOC Request
No. 05880664 (November 2, 1989); see also "Policy Guidance on the Use
of 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). Accordingly, the agency's final decision dismissing
complainant's complaint is AFFIRMED, albeit on different grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 28, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064860
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064860