01990863
01-18-2000
Thomas M. Chamberlin, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Thomas M. Chamberlin, )
Complainant, )
)
v. ) Appeal No. 01990863
) Agency No. F-95-4734
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
On November 4, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 6, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the basis of reprisal for prior EEO
activity when on June 10, 1995, complainant received a decision from
the agency's Office of Security denying his internal agency appeal for
reinstatement of his security clearance because he was no longer employed
by the agency.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant was not employed by the
agency at the time he received the letter, and therefore was not a covered
employee under the EEO process. The agency noted that complainant lost
his security clearance in June 1994, and was terminated for unrelated
reasons in September 1994, which complainant unsuccessfully appealed to
the Merit Systems Protection Board, and eventually to the United States
Court of Appeals. The agency also notes that complainant filed an EEO
complaint regarding his security clearance being revoked.
On appeal, complainant argues that the agency waited to process his
security clearance reinstatement request until after the MSPB decision
was rendered. Complainant admits on appeal that he filed a separate
complaint, Agency No. 94-4622, regarding the revocation of his top secret
security clearance. Complainant also contends that he was discriminated
against by various officials involved in the processing of his prior
complaints, appeals, and cases.
The record includes a letter from the Security Office, dated May 18, 1995,
informing complainant that his appeal for reinstatement of his security
clearance was moot because he was no longer employed by the agency.
The letter explained that complainant �no longer has a need-to-know or
access to classified information.�
The Commission finds that to the extent complainant alleges harm from the
processing of prior complaints, his complaint must be dismissed. EEOC
Regulations require dismissal of complaints alleging dissatisfaction with
the processing of a previously filed complaint. See 64 Fed. Reg. 37,644,
37,565 (1999) (to be codified as 29 C.F.R. �1614.107(a)(8)).
Although the agency dismissed the claim regarding his security clearance
for failure to state a claim, the Commission finds that it is more
properly analyzed for whether it states the same claim pending or decided
by the agency or Commission. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides
that an agency may dismiss a matter that is pending before or has been
decided by the agency or Commission.
Complainant admits that he alleged discrimination from the denial of his
security clearance in a prior EEO complaint. The agency's denial of his
request to have the security clearance reinstated does not give rise to a
new claim � the underlying claim, denial of the security clearance, and
possible remedy, reinstatement of security clearance, remain the same.
The present complaint is a mere elaboration of the prior complaint.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 18, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.