0120121819
07-13-2012
Mark Gomez, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Mark Gomez,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120121819
Agency No. ATF-2011-00795
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 25, 2012, dismissing a formal 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
During the period at issue, Complainant was an applicant for employment with the Agency. On August 2, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic) and sex (male).
In its final decision, the Agency determined that Complainant's formal complaint was comprised of the following claim:
On June 3, 2011, [Complainant] received a letter dated May 27, 2011, stating that he was no longer under consideration for the position of special agent with the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives).1
The Agency dismissed Complainant's formal complaint, finding that it constituted a collateral attack on the proceedings of another forum. The Agency noted that Complainant filed an appeal with the MSPB (Merits Systems Protection Board) on June 20, 2011, and that the MSPB issued a decision dismissing his appeal for lack of jurisdiction.
The Agency further dismissed Complainant's complaint for failure to state a claim. Specifically, the Agency found that the Commission "has held it has no authority to review the substance of security clearance determinations." In its final decision, the Agency noted that on March 10, 2011, the Associate Chief of Recruitment, Hiring, and Staff Center (AC) issued a letter stating that ATF was offering a tentative reinstatement for the position of Criminal Investigator (Special Agent) in Los Angeles.2 The Agency stated that the March 10, 2011 letter from AC provided that "reinstatement was contingent upon a successful completion of an updated background investigation, polygraph, medical examinations, and a drug test." Moreover, in its final decision, the Agency asserted that AC signed an Investigation Referral Memorandum on May 27, 2011, pertaining to Complainant's background investigation and recommending that Complainant not be hired.3
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserts that the Agency's final decision dismissing his formal complaint is improper. Specifically, Complainant's attorney asserts "nowhere in his complaint does Complainant even mention anything about security clearances, further undermining the Agency's...disposition of this complaint. Regarding the Agency's dismissal for this matter being a collateral attack, Complainant's attorney asserts "Complainant has not raised the issues brought to the Agency in any other forum..."
Complainant's attorney further asserts that assuming arguendo that the "gravamen of Complainant's claim was based upon a revocation or denial of a security clearance or was questioning the substance of a security clearance determination, the Agency's summary dismissal of the claim fails to address the nuances of the Commission's jurisdiction utilizing current law."
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's formal complaint for being a collateral attack on another process. The record reflects that Complainant is alleging that he was subjected to discrimination when he was not selected for the position of Special Agent. While the record reflects that Complainant filed an appeal with the MSPB on this matter, we note that Complainant is not contesting the outcome of the MSPB decision. We further note that the MSPB decision dismissed Complainant's appeal for lack of jurisdiction; thus, the MSPB did not adjudicate this matter on the merits. See Gomez v. Dep't of Justice, MSPB Docket No. SF-3443-110661-I-1 (Oct. 18, 2011).
The Agency improperly dismissed Complainant's formal complaint when reasoning that it is not within the Commission's jurisdiction. We note that Complainant is not alleging that his security clearance was revoked or denied; rather, he is alleging that he was not selected for a position based on his protected classes; thus, he has set forth an actionable claim. Even assuming arguendo, that this matter involved a security clearance, we note that Commission decisions have distinguished between claims which complainants are alleging their security clearances were revoked and claims in which complainant are alleging that they were removed or suffered some adverse actions subsequent to their security clearances being revoked. See Fonda-Wall v. Dep't of Justice, EEOC Appeal No. 072060035 (July 28, 2009). The Commission is permitted to look at the subsequent adverse actions. Id. Based on the foregoing, we find that the Commission has jurisdiction over Complainant's nonselection claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER 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.
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 (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
July 13, 2012
Date
1 The Commission notes that the record contains a copy of this May 27, 2011 letter.
2 The Commission notes that the record does not contain a copy of this letter.
3 The Commission notes that the record does not contain a copy of this memorandum.
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0120121819
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121819