Jamison W,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120182724 (E.E.O.C. Nov. 6, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jamison W,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120182724

Agency No. DOS-0232-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final decision dated July 25, 2018, 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 for the Agency at the U.S. Embassy in Bangkok,
Thailand.

On May 7, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of race (Asian), national origin (Japanese), color (Oriental), and
reprisal for prior protected EEO activity when:

1) During Complainant’s wife’s interview with Diplomatic Security
(DS) in June 2016, someone made disparaging remarks about her
culture; and

2) In March 2018, DS suspended Complainant’s 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.
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The Agency dismissed Claim 1 for untimely EEO Counselor contact under 29 C.F.R. §§
1614.107(a)(2) and 1614.105(a)(1).

The Agency dismissed Claim 2 for the failure of Complainant and his attorney to participate in
pre-complaint processing. The Agency also dismissed Claim 2 by finding that the Commission is
“precluded from reviewing the substance of security clearance decisions.” Additionally, the
Agency argued that Claim 2 constituted an impermissible attack on the Agency’s internal
grievance process because Complainant had raised this same matter in 2017, alleging
discriminatory treatment related to the Japanese custom of family bathing.

The instant appeal followed. On appeal and through Counsel, Complainant contends that the
Agency erroneously dismissed Claim 1 because it should have been considered in the context of
an ongoing claim. Complainant stated that the record reveals his counsel fully participated in the
pre-complaint processing via email. As to the jurisdictional issue, Complainant asserted that the
Agency’s decision had misapplied the holdings of Rattigan v. Dep’t of Justice, 689 F.3d 764 (D.C.
Cir. 2012) and Egan v. Dep’t of the Navy, 484 U.S. 518 (1988). Complainant further distinguished
the present case from the 2017 grievance because Complainant filed that grievance for different
reasons.

ANALYSIS AND FINDINGS

Claim 1

Regarding Claim 1, we find that the Agency’s dismissal for untimely EEO Counselor contact was
improper. EEOC Commission has a “reasonable suspicion” standard that determines when the
forty-five-day limitation period has triggered. See Howard v. Dep’t of the Navy, EEOC Request
No. 05970852 (Feb. 11, 1999). Thus, the time limitation was not triggered until Complainant
reasonably suspected discrimination after reading the Agency’s report on the suspension of his
security clearance. The Agency’s dismissal speculated that Complainant’s wife had informed him
about the DS investigator disparaging Japanese culture shortly after her June 2016 interview.
According to the EEO Counselor’s report and emails, however, Complainant only became aware
of the Diplomatic Security investigator’s disparaging comments after he read the report associated
with the Agency’s 2018 suspension of his security clearance. Moreover, regarding Claim 1, the
alleged act of the Diplomatic Security investigator in this claim was part of the same discrimination
described in Claim 2).

Claim 2

We analyze Claim 2 in terms of whether it states a justiciable claim, pursuant to 29 C.F.R. §
1614.107(a)(1). This Commission has consistently held that an agency should not dismiss for
failure to state a claim unless it appears beyond doubt that no set of facts support a claim which
could entitle a complainant to relief. See Cobb v. Dep’t of the Treasury, EEOC Request No.
05970077 (Mar. 13, 1997). Here, a fair reading of the record reveals that Complainant stated a
valid claim of disparate treatment the Agency’s decision to suspend his security clearance.
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See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). This
Commission lacks jurisdiction to review the Agency’s requirement of a security clearance or
security clearance determinations. See Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988);
Thierjung v. Dep’t of Def. (Def. Mapping Agency), EEOC Request No. 05880664 (Nov. 2,1989);
see also Policy Guidance on the Use of Nat’l Sec. Exception contained in 703(g) of Title VII,
EEOC Notice No. N-915-041 (May 1, 1989). However, EEOC does have jurisdiction to review
whether the Agency suspended Complainant’s security clearance in a discriminatory manner. See
Schroeder v. Dep’t of Def. (Def. Mapping Agency), EEOC Request No. 05930248 (Apr. 14, 1994);
Lyons v. Dep’t of the Navy, EEOC Request No. 05890839 (Mar. 22, 1990).

Here, Complainant has alleged that the Agency improperly suspended his security clearance based
on the bases raised in his formal complaint.

Additionally, we find that failure to participate in the pre-complaint process was neither a valid
ground for dismissal nor was it supported by the record. To the extent that the Agency attempted
to argue that Claim 2 was a collateral attack or stated the same claim, it declined to provide
Complainant’s 2017 grievance in support of its positions.

CONCLUSION

Accordingly, EEOC REVERSES the Agency’s dismissal of the instant complaint and REMANDS
this matter to the Agency for further processing in accordance with the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If Complainant requests a final decision without
a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission’s Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of Complainant’s request for a hearing, a copy of Complainant’s request
for a final agency decision, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory.
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Within seven (7) calendar days of the completion of each ordered corrective action, the Agency
shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital
format required by the Commission, referencing the compliance docket number under which
compliance was being monitored. Once all compliance is complete, the Agency shall submit via
FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R.
§ 1614.403(g). The Agency’s final report must contain supporting documentation when
previously not uploaded, and the Agency must send a copy of all submissions to Complainant and
his/her representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 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.
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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:

______________________________n’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 6, 2018
Date