Gabriele G.,1 Complainant,v.David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2020003214 (E.E.O.C. Sep. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gabriele G.,1 Complainant, v. David Bernhardt, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 2020003214 Agency No. DOI-FWS-19-0763 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 10, 2020, dismissing a formal 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 Special Agent, Criminal Investigator, GS-13, at Region 4, North Florida District, Office of Law Enforcement, in Groveland, Florida. On October 24, 2019, Complainant filed a formal complaint claiming unlawful employment discrimination based on sex (female) when, on August 1, 2019 Complainant learned that on July 9, 2018 and October 12, 2018, while participating in a background investigation, the Resident Agent in Charge (RAC) made allegedly false statements about Complainant to an investigator with the Office of Personnel Management's (OPM) National Background Investigations Bureau, and the RAC did not recommend Complainant for a security clearance. 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 2030003214 On February 10, 2020, the Agency issued the instant final decision. The Agency dismissed the formal complaint for failure to state a claim, finding that the Commission is precluded from reviewing the substance of security clearance decisions. The Agency also found the formal complaint was an impermissible collateral attack on a separate OPM administrative decision- making process. The instant appeal followed. On appeal, Complainant and her representative added reprisal and disability as bases. Complainant also described incidents where the RAC had bullied and belittled her in the presence of co-workers. Complainant’s representative stated that Complainant had reported the RAC’s hostility toward her and toward women in general to their Agency’s Professional Responsibility Unit. Complainant argues that the RAC had never counseled her for deficiencies he reported to OPM. Complainant asserted that the RAC’s statements against her were not corroborated by other witnesses who were interviewed by the EEO Counselor. Finally, Complainant argues that the RAC had lied about Complainant having a “meltdown,” her government-issued firearm failed inspection, and her disciplinary record. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim under 29 C.F.R. §1614.103. To establish standing under 29 C.F.R. §1614.103, a complainant must be an employee or an applicant for employment of the agency that allegedly discriminated. In addition, the claim must concern an employment policy or practice which affects the complainant as an employee or applicant. An agency shall accept a complaint from any aggrieved employee or applicant who believes that she has been discriminated against because of her age or her prior protected EEO activity. 29 C.F.R. §1614.103; §1614.106(a). The Commission’s federal sector case precedent has defined an “aggrieved employee” as one who suffers an employment harm for which there is a remedy under EEOC Regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We agree with the Agency's final decision because the Commission has previously held that statements gathered in a security clearance investigative report are “squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction.” Schroeder v. Dep't of Def., EEOC Request No. 05930248 (Apr. 14, 1994). The Commission has applied Schroeder to affirm similar dismissals for failure to state a claim. In Complainant v. Dep't of Energy, EEOC Appeal No. 0120141119 (July 9, 2014), the Commission determined a claim accusing management and coworkers of making false statements during the course of OPM’s security clearance investigation fails to state a claim. In Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120131718 (Jan. 22, 2015), the Commission found that a complainant had not stated a valid retaliation claim by accusing his supervisor of making negative comments about him to an OPM investigator that resulted in an unfavorable security clearance determination. Therefore, we find the Agency properly dismissed the formal complaint for failure to state a claim in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1). 3 2030003214 Finally, to the extent that Complainant attempts on appeal various incidents of alleged harassment which are not related to the security clearance matter that is the subject of the instant formal complaint, Complainant is advised to initiate EEO Counselor contact on these matters. CONCLUSION The Agency's final decision dismissing the formal complaint for the reason discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 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 St. 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. 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. 29 C.F.R. § 1614.604(c). 4 2030003214 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 September 17, 2020 Date