Samuella Galbreath, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980927 (E.E.O.C. Nov. 4, 1999)

05980927

11-04-1999

Samuella Galbreath, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Samuella Galbreath v. Department of the Navy

05980927

November 4, 1999

Samuella Galbreath, )

Appellant, )

) Request No. 05980927

v. ) Appeal No. 01976037

) Agency No. 97-66001-010

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

__________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On June 17, 1998, Samuella Galbreath (the appellant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Samuella Galbreath v. John H. Dalton,

Secretary, Department of the Navy, EEOC Appeal No. 01976037 (May

22, 1998). EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons stated below, appellant's

request is denied. The Commission has decided, however, to reconsider

the previous decision on its on motion.

The issues presented are: (1) whether appellant's request for

reconsideration, with respect to allegation (5), satisfies the

requirements of 29 C.F.R. �1614.407(c); and (2) whether the previous

decision erred by reversing the agency's dismissal of allegation (1).

Appellant filed a formal complaint against the agency on April 21,

1996. Among other things, she alleged that she was the victim of

unlawful employment discrimination on the basis of race (Black) when:

(1) in a meeting held on October 29, 1996, she was notified that the

agency had issued a letter of intent to revoke her security clearance

and her eligibility for assignment to a sensitive position; and (5)

on August 2, 1996, she was issued a "Superior" performance rating and

awarded one continuing point and one bonus point for the performance

rating period of July 1, 1995 through June 30, 1996.<1>

The agency dismissed allegation (1) on the grounds that it failed to

state a claim. According to the agency, the Commission did not have

jurisdiction in this matter because it concerned a security clearance

determination. The agency dismissed allegation (5) as untimely, since

appellant did not contact an EEO counselor until November 5, 1996. On

appeal, appellant argued, with respect to allegation (1), that "I believe

that I have been discriminated [against] because of race, Black. They

made a medical decision that I was unworthy to perform my duties because

of my concerned [sic] behavior in January 1996. This was prior to their

receipt of any doctor's report." With regard to allegation (5), appellant

intimated that she sought EEO counseling in an untimely manner because

she feared retaliation. The previous decision reversed the dismissal of

allegation (1) and affirmed the dismissal of allegation (5).

In her request to reconsider (RTR), appellant, in large part, argued the

merits of allegation (5). She did indicate, however, that "my main focus

was on sorting out what was transpiring with my employment, consulting

a doctor, and my livelihood. Being preoccupied and convoluted [sic]

with these issues interfered with the submission of my performance

rating complaint." The agency opposed appellant's RTR. According to

the agency, the previous decision, with respect to allegation (5), was

correctly decided and that appellant failed to satisfy the criteria of

29 C.F.R. �1614.407(c).

In order to merit the reconsideration of a prior Commission decision, the

requesting party must submit written argument or evidence which tends to

establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is

met. The Commission's scope of review on a request for reconsideration is

narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). A reconsideration request is not merely a form

of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850

(September 7, 1990). Instead, it is an opportunity to submit newly

discovered evidence, not previously available; to establish substantive

error in a previous decision; or to explain why the previous decision

will have effects beyond the case at hand. Lyke v. USPS, EEOC Request

No. 05900769 (September 27, 1990).

After a careful review of the record, the Commission finds that

appellant's RTR does not meet the regulatory criteria of 29

C.F.R. �1614.407(c). With respect to allegation (5), we also find

no justification for reconsidering the previous decision on our own

motion. The Commission has previously held that fear of reprisal is not a

justification for contacting an EEO counselor in an untimely manner. See

Duncan v. Department of Veterans Affairs, EEOC Request No. 05970315

(July 10, 1998); Parker v. Department of Veterans Affairs, EEOC Request

No. 05940436 (February 9, 1995); Kovarik v. Department of Defense,

EEOC Request No. 05930898 (December 9, 1993). Furthermore, although

the record indicates that appellant, for a period of time in 1996, was

under a great deal of stress and had to be medically evaluated, we find

no persuasive evidence that she was so incapacitated by her condition

that she was unable to meet the regulatory time limits. See Davis

v. United States Postal Service, EEOC Request No. 05980475 (August 6,

1998); Crear v. United States Postal Service, EEOC Request No. 05920700

(October 29, 1992); and Zelmer v. United States Postal Service, EEOC

Request No. 05890164 (March 8, 1989). Finally, although other allegations

in appellant's complaint were timely raised and will be processed, we

do not find that allegation (5) should be considered timely under the

continuing violation theory. The Commission has held that a continuing

violation does not exist when, as here, the act complained of is by itself

capable of triggering a reasonable suspicion of discrimination. Ferguson

v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999).

Although the agency did not contest the previous decision's determination

regarding allegation (1), we have decided to reconsider this matter on our

own motion in order to correct a legal error. 29 C.F.R. �1614.407(a). The

record indicates that appellant, a Computer Specialist, DS-0334-03,

held a security clearance which allowed her access to classified and

sensitive records. In the Summer of 1995, she began suspecting that

she was being followed home after work and that people were gaining

access to her apartment. According to appellant, these individuals were

planting listening devices and were watching her home. She informed agency

officials of her concerns in January 1996. After an investigation, which

did not confirm appellant's allegations, management decided that her

behavior required that the Department of the Navy Central Adjudication

Facility (DONCAF) be notified. In April 1996, DONCAF, the department which

determines whether individuals are eligible to hold security clearances,

requested that a physician examine appellant. In July and September

1996, the agency forwarded medical information to DONCAF. In October

1996, DONCAF notified appellant that her security clearance would be

revoked.<2>

Upon review, we agree with the agency's dismissal of allegation

(1). The Commission has held that it has no authority to review a

security clearance determination or the validity of an employer's

requirement of a security clearance. The Commission is, however, not

precluded from determining whether the grant, denial, or revocation of a

security clearance was conducted in a discriminatory manner. See Lyons

v. Department of the Navy, EEOC Request No. 05890839 (March 22, 1990);

Thierjung v, Department of Defense, EEOC Request No. 05880664 (November 2,

1989). See also Department of the Navy v. Egan, 484 U.S. 518 (1988).

Appellant maintained that she was discriminated against because the

revocation of her security clearance was made prior to the agency

receiving a medical report. Although this contention appears to be

disputed by the record, we find that her concerns fall squarely within the

rubric of the type of security clearance determination that is beyond

the Commission's jurisdiction. Schroeder v. Department of Defense,

EEOC Request No. 05930248 (April 14, 1994). Since appellant appears to

be challenging the method by which the agency arrived at its decision,

the dismissal of allegation (1) was proper.

After a review of appellant's request to reconsider, the agency's

response, the previous decision, and the entire record, the Commission

finds that appellant's request fails to meet the criteria of 29

C.F.R. �1614.407(c), and it is the decision of the Commission to deny the

request. The Commission, however, has decided to reconsider the previous

decision on its own motion, pursuant to 29 C.F.R. �1614.407(a). The

decision in EEOC Appeal No. 01976037 (May 22, 1998) is REVERSED, in part,

and AFFIRMED, in part. The agency's final decision is AFFIRMED. There

is no further right of administrative appeal from a decision of the

Commission on a request to reconsider.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Nov. 4, 1999

Date Frances M. Hart

Executive Officer

1Allegations (2)-(4) were accepted for investigation.

2As noted by the previous decision, appellant's security clearance was

restored in March 1997.