9 OCAHO no. 1111
497197, *7-8; United States of America v. Patrol & Guard Enterprises, Inc., 8 OCAHO 603, 618- 623, *9-13.
In this case, Respondent’s contract with the Department of Defense provides, in relevant part, that “Ammunition/Hazardous Material Handlers” must possess a secret security clearance. RX-D (Complete Department of Defense-BAE Systems Contract); RX-E (Excerpt from Department of Defense-BAE Systems Contract showing personnel requirements). The position that Seaver applied for with Respondent (Warehouse Specialist) involves the routine handling of ammunition, and hazardous materials or waste. RX-A (Warehouse Specialist Position Announcement). Warehouse Specialists thus must have a secret security clearance and “only U.S. citizens are eligible for a security clearance.” RX-M at 2-2-2 (NISPOM). I conclude that the anti-discrimination provisions of § 1324b(a)(1) did not apply to Respondent’s denial of Seaver’s application, because the Department of Defense-BAE Systems contract and the NISPOM limited potential hires to U.S. citizens who could obtain the requisite security clearance. See 8 U.S.C. § 1324b(a)(2)(C); Kasathko, supra, at 185, *7; Anderson, supra, at 371-373, *7-8; Patrol & Guard Enterprises, Inc., supra, at 618- 623, *9-13. Accordingly, no genuine issues of material fact remain with respect to Complainant’s claims of national origin and citizenship status discrimination, and Respondent is entitled to decision as a matter of law. See Aguirre supra, at 640, *7 (internal citations omitted).
Timeliness Under 8 U.S.C. § 1324b(d)(2)
Finally, Respondent argues that Complainant’s Complaint must be dismissed because she failed to file it within 90 days of receiving authorization to do so from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Motion to Dismiss at 5-6. Since I must refer to documents outside of the Complaint in adjudicating this argument, summary decision standards apply.
An individual alleging discrimination under 8 U.S.C. § 1324b must file a charge with OSC within 180 days of the date of the alleged unfair immigration-related employment practice. 8 U.S.C. §§ 1324b(b)(1) and 1324b(d)(3); 28 C.F.R. § 68.4(a) (2004). Within 120 days of the date of receipt of the charge, OSC then must notify the charging individual whether or not it will bring a complaint respecting the charge. 8 U.S.C. § 1324b(d)(1); 28 C.F.R. § 68.4(b)(1)-(2) (2004). If OSC chooses not to prosecute the case, the charging individual may file a complaint directly with OCAHO within 90 days after the date of receipt of the right-to-sue letter. See 8 U.S.C. § 1324b(d)(2) (emphasis added); 28 C.F.R. § 68.4(c) (2004) (emphasis added). OCAHO precedent supports the dismissal of a complaint for untimeliness when a person fails to file the complaint within 90 days of receipt of the right-to-sue letter from OSC. See, e.g., Soto v. Top Industrial, Inc., 7 OCAHO 1210, 1998 WL 746020; Aguirre, supra.
However, the 90-day time limit for filing a complaint is not a jurisdictional prerequisite, and it is subject to the doctrine of equitable tolling. Mikhailine v. Web Sci Techs, 8 OCAHO 513, 519;