0520140497
04-08-2016
Sulema B.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sulema B.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Request No. 0520140497
Appeal No. 0120141119
Agency No. 13-0104-HQ-HG
DECISION ON REQUEST FOR RECONSIDERATION
On August 5, 2014, the Agency requested reconsideration of the decision in EEOC Appeal No. 0120141119 (July 9, 2014). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c). For the following reasons, the Agency's request is DENIED.
BACKGROUND
This issue initially came before the Commission when Complainant appealed the Agency's December 17, 2013, final decision dismissing Complaint's EEO complaint for failure to state a claim. Specifically, the Agency dismissed Complainant's claim which expressed her belief she was discriminated against when: (1) the Office of Hearings and Appeals managers allegedly made false, inappropriate and irrelevant statements during a U.S. Office of Personal Management (OPM) security clearance investigation; and (2) she was subjected to an additional OPM security clearance in 2012 without her knowledge, after being found suitable for federal employment by the Agency's Office of Human Capital Management in February 2012. The Commission affirmed the Agency's dismissal of the first allegation but reversed its dismissal of the second. See EEOC Appeal No. 0120141119 (Jul. 9, 2014) at 1.2 Thereafter, the Agency filed this request to reconsider.
ARGUMENTS ON RECONSIDERATION
On reconsideration, the Agency argues that the previous decision (PD) is based on a clearly erroneous interpretation of material fact because suitability for federal employment and eligibility for a national security clearance are separate and distinct processes, and that our decision fails to acknowledge this. The Agency goes on to argue that suitability is the process by which an applicant or employee is deemed fit for employment by the federal government, while eligibility for a national security clearance applies to all individuals who are employed by or are applicants to the federal government. See Agency's Request for Reconsideration dated August 5, 2014 at 1-2.
The Agency's final argument, regarding its assertion that the PD was based on an erroneous interpretation of material fact, demonstrates its belief that allegation 2 presupposes that Complainant had already obtained a security clearance, which she confuses with having been found suitable for employment. Id. at 2. In furtherance of this argument, the Agency states that it never had occasion to grant or deny Complainant a security clearance because she was later removed for cause on April 16, 2012, which obviated the need to adjudicate her eligibility. Id.
The Agency further argues that the PD is based on a clearly erroneous interpretation of material fact and law because Complainant has never held or obtained a security clearance. Id. at 4. Here, the Agency clarifies that, in or around March 2011, the Office of Headquarters Personnel Security Operations (HPSO), Complainant's employing office, requested that Complainant and others be adjudicated for a security clearance. According to the Agency, this request was made as part of HPSO's standard intake process. Id. at 5.
The Agency then turns its focus to the PD, which the Agency states "analyzes Complainant's appeal from standpoint of her already having been granted a clearance, and then somehow being subjected to a reinvestigation." Id. at 5-6. It further states that these facts distinguish its decision to dismiss allegation 2 from the decisions upon which the Commission relies to support its reversal of the Agency's dismissal of issue 2 in the underlying appeal.
Next, the Agency's argues that the PD's disposition of issue 2 is based on a clearly erroneous interpretation of law because this matter does not involve the grant, denial, or revocation of a security clearance or the decision to initiate review of a previously obtained security clearance. Id. at 6. The Agency concludes by stating that, without any such decision on the Agency's part, the Commission impermissibly opines on either the substance of the Agency's unresolved decision or the validity of the requirement that Complainant acquire a security clearance to gain the ability to work in HPSO. Id. at 7.
Finally, the Agency argues that the PD will have a substantial impact on the policies, practices, or operations of the Agency because any investigation will impermissibly delve into the Agency's security clearance process. Id. at 7-8.
ANALYSIS AND FINDINGS
The Commission notes that, on reconsideration, the Agency argues that the PD conflates two issues, that is, (1) suitability for federal employment, and (2) eligibility for a security clearance. The Commission further notes that the Agency's contentions on appeal surround Complainant's security clearance. See Agency's March 12, 2014, Opposition to Complainant's Appeal at 1 (stating the issues presented on appeal as whether: "Complainant's allegations regarding the substance of the Agency's security clearance process were properly dismissed for lack of jurisdiction," ... "Complainant fails to state a claim upon which relief can be granted, given that remedying the allegedly discriminatory security clearance process would have no bearing upon...Complainant's employment status," ...[and] "the intervening for-cause removal rendered...Complainant's allegations regarding the security clearance process moot."). The Commission's ultimate decision regarding those issues, all three of which relate to the security clearance process and/or Complainant's removal in some way, were resolved in the Agency's favor upon the Commission's determination that issue 1 of Complainant's complaint was appropriately dismissed.
Now it appears that, on reconsideration, the Agency wants to challenge the Commission's disposition of issue 2, namely and as clarified in the PD, Complainant's allegation that "the Agency ordered and paid for an additional security clearance investigation because a 'concern' was raised regarding her employment in the Office of Hearings [and] Appeals and [Complainant's contention] ... that the Office of Hearings [and] Appeals managers knew she was going to be fired and rushed the investigation to prevent [Complainant] from securing future federal employment." See PD at 2. Here, the Agency attempts to use the arguments it presented on appeal to sustain its dismissal of issue 1, and have the Commission reapply them in such a way as to sustain the Agency's dismissal of issue 2.
The Commission is not persuaded that those arguments can be leveraged on reconsideration and applied to a different allegation, in this case issue 2, to demonstrate that the PD contained an erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Commission emphasizes that a request for reconsideration is not a second opportunity to appeal a Commission determination. See, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015), at 9-18. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency.
As to the remand of issue 2, the PD makes clear that the gravamen of that allegation is not whether Complainant was denied a security clearance pursuant to an OPM investigation or whether such investigation was conducted in the first place, but whether the Agency "rushed the investigation to prevent Complainant from securing future federal employment." See PD at 2; see also, PD at 3 (stating the "instant case...regards the allegedly discriminatory initiation ... [or, in Complainant's words, rushing] of a security clearance investigation, not the decision to stop going forward with one."). Therefore, the Commission rejects the Agency's argument that the PD conflates two issues; namely, suitability for federal employment and eligibility for a security clearance.
Further, to the extent the Agency argues on reconsideration that Complainant was not subjected to an additional security clearance investigation in 2012 without her knowledge, it has inappropriately addressed the merits of the second allegation, which is irrelevant to the procedural determination as to whether issue 2 presents a justiciable claim. See Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Upon review, we find that the Agency has not demonstrated that the PD involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c) and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120141119 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to process the issue 2 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 8, 2016
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Neither party requested reconsideration of the Commission's decision regarding the first allegation; thus, that issue is not before us.
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