0120162093
11-15-2016
Becky N.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement (ICE)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becky N.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement (ICE)),
Agency.
Appeal No. 0120162093
Agency No. HS-ICE-25461-2016
DECISION
On June 15, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 23, 2016, dismissing her 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
At the time of events giving rise to this complaint, Complainant worked as an Accountant at the Agency's ICE facility in Washington, DC.
On January 25, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her based on reprisal for prior protected equal employment opportunity (EEO) activity when on December 9, 2015, an investigator with the Office of Personnel Management (OPM) visited her at her home to conduct a routine security clearance investigation and:
1. questioned her about her prior EEO complaint and settlement agreement with the U.S. Army;
2. alleged that she returned from a temporary duty assignment to Kuwait (while in the U.S. Army) without management being aware of or having any prior knowledge of her return; and
3. alleged that while on assignment to Kuwait with the Aviation Missile Command G-8 (AMCOM -U.S. Army) she performed poorly.
In her corrected complaint, Complainant identified the person who took action against her as her former U.S. Army supervisor at the Redstone Arsenal in Alabama. In her report, the EEO counselor wrote that Complainant relayed that she believed her former U.S. Army supervisor was the person who gave the OPM investigator the information about her U.S. Army EEO case to damage her character and hinder her ability to obtain a security clearance, and that Complainant left AMCOM in 2010.
The Agency dismissed the complaint for failure to state a claim. Citing Schroeder v. Department of Defense, EEOC Request No. 05930248 (April 14, 1994), the Agency found that the Commission has held that once statements gathered during the investigation and are included in the security clearance investigative report, they are "squarely within the rubric of a security clearance determination and, accordingly beyond the Commission's jurisdiction."
On appeal, Complainant makes no argument.
In opposition to the appeal, the Agency reiterates the finding in its FAD, bolstering it with further EEOC case citations. It also argues that Complainant identified the person who discriminated against her as her former supervisor with the U.S. Army - not someone in the Agency.
ANALYSIS AND FINDINGS
The Commission will not review an agency's determination with regard to the substance of a security clearance decision. 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); Department of the Navy v. Egan, 484 U.S. 518, 529 (1988).
As found by the Agency, the Commission has previously held that once statements gathered during the investigation are included in the security clearance investigative report, the statements are "squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction." Schroeder. The Commission has applied Schroeder, finding allegations do not state a claim in circumstances similar to this case. Complainant v. Department of Energy, EEOC Appeal No. 0120141119 (July 9, 2014) (claim of reprisal when agency managers and employees allegedly made false, inappropriate and irrelevant statements during an OPM security clearance investigation; Haydee A. v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120132668 (Jan. 19, 2016) (claim of reprisal when someone at the Agency gave false statements about complainant's writing skills during a Department of Defense background security investigation); Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120131718 (Jan. 22, 2015) (claim of reprisal when complainant's supervisor allegedly made negative comments about him during the security clearance investigation conducted by OPM).
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
November 15, 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.
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