0120081913
12-09-2009
Wilfredo Romero, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.
Wilfredo Romero,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120081913
Hearing No. 570-2007-00273X
Agency No. OIG 06-02
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 1, 2008 final order concerning an equal
employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
Complainant, an Auditor, GS-12, at the agency's Office of Inspector
General in Washington D.C., filed a formal EEO complaint dated November
16, 2005. Therein, complainant claimed that the agency discriminated
against him on the bases of race (Hispanic), disability (sleep apnea and
chronic labyrinthitis), and age (over 40) when, on September 20, 2005:
1. he was neither referred nor selected for promotion to the positions
of Auditor, GS-511-13, under Job Vacancy Announcement Numbers: IG009905,
IG010005 and IG011405; and
2. he was denied a background investigation for the same vacancy
announcements.
The record reflects that complainant's GS-12 Auditor position required a
security clearance with access to sensitive compartmentalized information
(SCI) and classified information, which he had been granted by the
Washington Headquarters Service Central Adjudication Facility. In late
2004, the Defense Intelligence Agency Central Adjudication Facility
(DIA-CAF) issued a letter of intent informing complainant that a
preliminary decision had been made to deny him clearance for access to
SCI under the "foreign influence" standard. The record reflects that
the specific risk cited in the preliminary denial was the Honduran
citizenship of complainant's wife and stepson. By letter dated March
8, 2005, the DIA-CAF notified complainant of its final decision to
revoke his access to classified/sensitive information.1 Complainant
appealed the revocation to the Defense Office of Hearings and Appeals.
While this appeal was pending, complainant was not referred or selected
for the positions in question.
Following the investigation into his formal EEO complaint concerning
the nonselections, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On February 4, 2008, the AJ issued a decision
by summary judgment in favor of the agency. The agency fully implemented
the AJ's decision in its final order.
The AJ found that, based on the evidence of record, complainant did
not show by a preponderance of the evidence that he was discriminated
against on the bases of race, disability and age.2 The AJ noted that
in regard to claims 1 - 2, the record reflects that complainant was not
referred or selected for promotion to the positions of Auditor, GS-511-13,
under Job Vacancy Announcement Numbers: IG009905, IG010005 and IG011405,
and was denied a background investigation for the subject positions
because of his inability to obtain a security clearance. Finally, the
AJ concluded that complainant did not prove, by a preponderance of the
evidence, that the agency's proffered reasons for its actions were a
pretext for discrimination.
The AJ noted that in three letters dated March 20, 2005, the agency
notified complainant that he had been removed from the referral list for
each of the three subject positions to which he applied, based on his
inability to obtain a security clearance. The AJ further noted that the
subject position descriptions specified that security clearance would
be required for the position.
The AJ noted that a Human Resources Specialist (S1) stated that
complainant "was absolutely qualified. It was completely an issue of
eligibility based on what was happening with his clearance." S1 further
stated that Human Resources "went to our legal counsel who advised us
that we should have your name removed. We did have legal advice to do so.
And right or wrong, it was because of that advice and [because] of [the]
suspended clearance that we did it. It wasn't because of your age,
your race or your disability."
The Associate General Counsel (GC) stated that S1 contacted him in
regard to complainant's name "appearing on referral lists and the concern
was that as a condition of employment, our employees have to obtain and
maintain a security clearance and we knew at that point that his clearance
had been revoked, [and] whether it was proper for his name to continue
to appear on the referral lists." GC further stated that he suggested
S1 to contact DFAS [Defense Finance and Accounting Services] "who is
our servicing personnel office and inform them [that] his clearance had
been revoked and asked them if it was appropriate for him to continue
to - - his name continue to appear on referral lists. And apparently
after DFAS was notified, his name was removed from the referral lists."
GC stated that the purpose of advising S1 to contact DFAS in regard to
whether complainant's name should be referred to the selecting official
"because the position description and the position required possession
and maintenance of a security clearance which [complainant] did not have
at that time."
On appeal, complainant argues that the AJ improperly granted summary
judgment in favor of the agency because there are genuine issues
of material fact. For instance, complainant argues that the report
of investigation "was not adequately developed because it contains
false and incorrect information." Complainant further argues that his
security clearance was not revoked and that the Merits System Protection
Board (MSPB) "would not have ordered complainant's reinstatement as of
December 2005, if he had been lacking a required security clearance as
of that date." Complainant argues that while he was denied an upgrade
to his clearance to SCI, his pre-existing security clearance "was not
revoked, as the MSPB understood, because DIA did not have jurisdiction
over complainant's secret security clearance."
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weight the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Complainant, on appeal, argued that the agency conducted an inadequate
investigation by containing false and incorrect information. We determine
that the agency properly conducted an adequate investigation of the
instant complaint. We further determine that complainant has offered
no persuasive arguments on appeal regarding the AJ's decision to issue
a decision without a hearing, or regarding the AJ's findings on the
merits.
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final order, because the AJ's issuance of a decision without a hearing
was appropriate and a preponderance of the evidence does not establish
that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (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
December 9, 2009
__________________
Date
1 Complainant later filed an appeal with the Merit Systems Protection
Board (MSPB) concerning an indefinite suspension that resulted from the
revocation of his security clearance. While the Board later cancelled
the suspension, it declined to address the propriety of the revocation
of complainant's security clearance.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120081913
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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