0320090031
03-12-2009
Reza Rezaee, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Reza Rezaee,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090031
MSPB No. AT0752080795I1
DENIAL OF CONSIDERATION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of an Initial Decision issued by the Merit
Systems Protection Board (MSPB) concerning his claim of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. Petitioner did not seek review of
the Initial Decision and it became the Board's final decision.
Petitioner alleged that he was discriminated against on the bases
of national origin (Arab/Iranian), religion (Muslim), and color (dark
skinned) when his security clearance was revoked and he was removed from
his position of Electronics Engineer, YD-02 with the Software Division,
Air Force Logistics Commands, Robins Air Force Base, Georgia, effective
August 27, 2008.
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued his decision affirming the agency's decision, but declining
to address the discrimination claims. The AJ cited to Panagrova
v. Department of the Army, 42 M.S.P.R. 319, 321-25 (1989), stating
that the Board was precluded from reviewing allegations of prohibited
discrimination when such affirmative defenses relate to the revocation
of a security clearance. The Commission notes that petitioner argued
that the agency could have and should have reassigned him to a set
of duties that do not require a clearance. Petitioner cited several
other individuals who lost their clearance but were still working at the
Air Force base. The AJ noted that the agency stated it did not have a
policy requiring reassignment and found there was no duty to reassign
petitioner. The Initial Decision gave petitioner appeal rights to the
Commission. Petitioner then filed his petition with the Commission.
In Panagrova v. Department of the Army, EEOC Petition No. 03900028 (March
29, 1990), this Commission addressed the very decision relied upon by the
Board, as well as the agency in response to petitioner's petition. In that
decision, the Commission found that it was not precluded from determining
whether the grant, denial, or revocation of a security clearance is
conducted in a nondiscriminatory manner. See "Policy Guidance on the
Use of the National Security Exception Contained in 703(g) of Title VII
of the Civil Rights Act as Amended," EEOC Notice No. N-915-041 (May 1,
1989). The Commission found that it could not address the merits of the
decision to revoke the security clearance, but it could address whether
the need for a security clearance in a particular position was applied
in a non-discriminatory manner. To that extent, the Commission finds
that the issues of whether petitioner's position required a security
clearance, and whether the agency could have reassigned petitioner or
rewritten petitioner's position are matters within its jurisdiction. The
Commission notes that petitioner clearly indicated that others were
allowed to remain with the agency after having their clearance revoked.
The AJ did not address the discriminatory aspects of petitioner's claims
regarding reassignment, instead relying on testimony that the agency
did not have a policy of reassigning employees.
Because the MSPB has denied jurisdiction over the discrimination claims,
in such matters the Commission has held that there is little point
in continuing to view the matter as a "mixed case" as defined by 29
C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed"
matter and processed accordingly. See generally Schmitt v. Dept. of
Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips
v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 2990); 29
C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles,
Petition No. 0320090031 hereby is administratively closed, and the matter
is referred to the agency for further processing as outlined below.1
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(c)(2)(ii),
the agency is required to process his allegations of discrimination as a
"non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. from the
point where processing ceased. The agency shall acknowledge to petitioner
that it has received the remanded matter within thirty (30) days of the
date this decision becomes final. After completing the investigation,
the agency shall issue to the petitioner a copy of the investigative file
and also notify the petitioner of the right to a hearing before an EEOC
Administrative Judge within 150 calendar days of the date this decision
becomes final, unless the matter is otherwise resolved prior to that
time. If petitioner requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of petitioner's request. Petitioner shall have the right to file a
civil action in an appropriate United States District Court, based on
the decision of the Merit Systems Protection Board, within thirty (30)
calendar days of the date the decision is received.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
March 12, 2009
__________________
Date
1 Petitioner filed an appeal with the Commission regarding the agency's
dismissal of his EEO complaint, EEOC Appeal No. 0120090843. Information
in that record indicates that EEO complaint (Agency No. 9R1M08182)
involved his termination and the agency dismissed the matter because
of the instant MSPB appeal. A decision on that appeal is being issued
simultaneously to ensure consistency.
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0320090031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090031