0120180056
03-05-2018
Evelina M.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency (FEMA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Evelina M.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency (FEMA)),
Agency.
Appeal No. 0120180056
Agency No. HS-FEMA-01042-2017
DECISION
On September 26, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 12, 2017, 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 was either an applicant to be a direct contractor with the Agency or an employee of a staffing firm serving the Agency. The record does not reflect what job Complainant applied for, nor its location.
On March 23, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that FEMA discriminated against her based on her race (African-American) and reprisal (Whistle-blower Disclosure) when on March 3, 2017, she was informed that her Public Trust "security clearance" was denied, resulting in her being denied employment.
Complainant was found unfit for assignment serving FEMA and denied Pre-appointment for Entry on Duty (EOD) on March 3, 2017.
The Agency dismissed the complaint for failure to state a claim. It reasoned that the record was insufficient to establish whether Complainant under common law for the purposes of EEO process applied to be an employee of the Agency, and the Commission does not have the jurisdiction to review the validity of the requirement for a security clearance nor the substance of a security clearance determination. It also dismissed Complainant's claim of reprisal discrimination because her claim of reprisal was based on being a whistle-blower, not EEO activity.
ANALYSIS AND FINDINGS
As an initial matter, we REVERSE the Agency's dismissal of Complainant's reprisal basis because it was based on being a whistle-blower, not EEO activity. The record is not sufficiently developed to determine whether Complainant's whistle-blower activity included a claim that discrimination occurred. Further, the Agency's dismissal of the reprisal claim involves a merits determination, which is premature at this stage.
The Commission does not have jurisdiction to review an agency's determination on the substance of a security clearance decision. Policy Guidance on the Use of the National Security Exception Contained in � 703(g) of Title VII 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, 529 (1988). Section 703(g) is an affirmative defense to a charge of discrimination. This means that the Agency must raise it and prove the challenged employment decision was made because of national security requirements imposed by statute or Executive Order.
Here, the Agency did not prove its affirmative defense. By letter to Complainant dated December 16, 2016, the Agency wrote that she submitted to a background investigation to determine her suitability for entry on duty as a "contract employee" with FEMA, and preliminary background checks disclosed concerns. The Agency listed the "suitability factors" in question: (1) Dishonest Conduct - Financial (two past due debts, including child support), and (2) Material Intentional False Statement, or Deception or Fraud in Examination for Appointment (Excepted Service) (in the application process answering "no" to whether she had any financial obligation that was over 180-days delinquent - child support). The Agency provided Complainant an opportunity to respond.
The record contains no information on the meaning of a Public Trust "security clearance," and does not show that the Agency's denial thereof is related to its affirmative defense that Complainant did not meet national security requirements (as opposed to suitability requirements). Also, there is no documentation in the record identifying the statute or Executive Order under which the unidentified position for which Complainant applied was designated a national security position with a requirement of a clearance nor that the Agency so designated it. The Agency's dismissal of Complainant's complaint because the Commission does not have jurisdiction to review its determination on the substance of a security clearance decision is REVERSED.
In its FAD, the Agency concedes the record is insufficient to determine whether it could properly be deemed the common-law employer for the unidentified position for which Complainant applied for purposes of the EEO process. We agree. The record contains no information about the position, i.e., its name, function, location, the Agency's relationship thereto, etc. Accordingly, the Agency's decision to dismiss the complaint because Complainant did not apply for employment with the Agency is VACATED.
The FAD is REVERSED in part and VACATED in part. The Agency shall comply with the orders below.
ORDER
The Agency shall gather information on the job for which Complainant applied and was denied, and whether the Agency had sufficient control or right to control the position to be deemed the common-law employer therefor (either singularly or jointly). Among other sources, guidance to help the Agency in doing so can be found in EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997); Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998); and Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016). Thereafter, the Agency shall accept Complainant's complaint for investigation or dismiss the complaint with rights to appeal to this office. The Agency shall complete these actions within seventy-five (75) calendar days after the date of this decision.
A copy of the Agency's letter to Complainant accepting the complaint or FAD dismissing her complaint must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
March 5, 2018
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180056
5
0120180056