Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120150270 Agency No. ARBRAGG14AUG03379 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 1, 2014, dismissing his complaint of unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Training Instructor at the Agency's facility in Fort Bragg in North Carolina. On September 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Egyptian), religion (Coptic Christian), and in reprisal for prior protected EEO activity. In its final decision dated October 1, 2014, the Agency determined that Complainant's complaint was comprised of the following claim. On July 28, 2014, [Complainant] found out that [his] appeal to reinstate [his] clearance was denied. The Agency dismissed Complainant's complaint for failure to state a claim reasoning that this matter is outside of the jurisdiction of the EEOC. The instant appeal followed. In response to Complainant's appeal, the Agency requests that we affirm its final decision dismissing Complainant's complaint. The Agency asserts Complainant's claim directly challenges the substance of a security clearance determination. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for failure to state a claim. The Commission will not review an agency's determination with regard to the substance of a security decision. See Policy Guidance on the Use of the National Security Exception Contained in § 703(g) of the Civil Rights Act of 1964, as amended, EEOC Notice No. N-915-041 (May 1, 1989); Dep't of the Navy v. Egan, 484 U.S. 518 (1988). However, it is not precluded from determining whether the requirement to maintain a security clearance in order to occupy a particular position was applied in a nondiscriminatory manner. See Thierjung v. Defense Mapping Agency, EEOC Request No. 05880664 (Nov. 2, 1989). Upon review of the record, we find Complainant's claim is directly challenging the substance of the Agency's security clearance determination. We note Complainant is seeking as the remedy for this matter to have his security clearance reinstated. In addition, in a document Complainant entitled "[Amendment]/Motion EEO Activity]", Complainant addressed the substance of the Agency's security concerns as set forth in the Agency's decision denying his security clearance. Based on the foregoing, we find that this matter is outside of the jurisdiction of the EEOC. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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), at 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 (S0610) 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 (Z0610) 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 April 1, 2015 __________________ Date 2 0120150270 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150270