0120152418
11-28-2017
Lenny W.,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lenny W.,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120152418
Hearing No. 520-2015-00103X
Agency No. HS-TSA-00487-2014
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, filed on July 7, 2015, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 22, 2015 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Complainant is a Transportation Security Inspector (Canine Handler) at the Agency's John F. Kennedy International Airport in Jamaica, New York.
On May 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (post-traumatic stress disorder (PTSD)) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On December 24, 2013, his security clearance was suspended and his keys to explosives were taken away;2
2. From December 24, 2013 through January 31, 2014, his duties and access to classified information were restricted while his security clearance was suspended; and
3. On January 10, 2014, he was directed to undergo psychological exam/testing.
The Agency investigated these issues. The record reflects that for a periodic update to maintain Complainant's security clearance, the Agency's Office of Security requested the Office of Personnel Management (OPM) do a background investigation on Complainant. In doing so OPM or a contractor thereof did a routine re-security interview of Complainant in October 2013. Sometime thereafter, OPM forwarded its background investigation to the Agency's Office of Security. OPM recounted in its report that Complainant said that he was treated for PTSD by the military and Department of Veterans Affairs, that it was ineffective and he did not like it, and his PTSD manifests itself at work and home by making him jumpy and overreacting to stressful situations. According to the OPM report, Complainant said he treated himself by drinking alcohol almost every night to the point that he feels relaxed, calm, and has slightly slurred speech - about four to five mixed drinks.
The Agency's Office of Security applies the U.S. Department of State Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (Feb. 3, 2006), which is designed for use on all U.S. government personnel. On December 24, 2013, it suspended Complainant's security clearance. In its notice thereof to Complainant, the Office of Security explained that it did so based on his October 2013 OPM interview where he indicated that instead of complying with a medical treatment plan for his PTSD, he treated his symptoms with alcohol consumption. The Office of Security wrote Complainant that this raises concerns about his ability to protect national security information, and that certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness, and that the suspension would remain in effect pending the completion and outcome of an internal Agency review. This was based on the Guidelines.
Because Complainant's access to classified information was suspended, the Agency restricted him from performing duties that required such access, e.g., denial of access to explosive training aids, which restricted his duties as an explosive detention canine handler. At the request of the Office of Security, a Human Resources Specialist with the Agency's Office of Human Capital scheduled Complainant for a psychological exam on January 10, 2014, with Federal Occupational Health. Complainant's second line supervisor directed him to keep this appointment. The Office of Security requested this appointment pursuant to the Guidelines, which provide that when there is a concern that emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness, a qualified mental health professional should be consulted when evaluating potentially disqualifying or mitigating information.
On January 31, 2014, Complainant received notification that he was returned to full duty.
Complainant argues that at his interview OPM made improper inquiries, and stated it misrepresented what he said in his interview.
Following the investigation, Complainant requested a hearing before an Equal Employment Decision Administrative Judge (AJ). The Agency filed a motion to dismiss and for summary judgement, and Complainant filed an opposition motion thereto. Citing case precedent, the Agency argued in part that the Commission did not have jurisdiction to adjudicate the temporary suspension of Complainant's security clearance.
The AJ issued a decision without a hearing. He found that the Commission is prohibited from reviewing the Agency's determination on the substance of its security clearance decision. In support thereof, the AJ referenced Department of the Navy v. Egan, 484 U.S. 518, 529 (1988). On Complainant's contention that OPM misrepresented what he said in its report, citing Schroeder v. Dep't of Defense, EEOC Request No. 05930248 (April 14, 1994), the AJ found that once manifested in the security file, statements therein are squarely within the rubric of a security clearance determination and hence beyond the Commission's jurisdiction. Accordingly, the AJ found that the Commission does not have jurisdiction over Complainant's allegation that he was discriminated against based on disability and reprisal when the Agency suspended his security clearance.
The AJ found that assuming arguendo both that the Commission has jurisdiction to review the Agency's decision to suspend Complainant's security clearance and that he made out a prima facie case of disability and reprisal discrimination, the Agency articulated a legitimate, nondiscriminatory reason for doing so, i.e., receipt of OPM's background investigation. The AJ found that Complainant's argument that the Agency misinterpreted OPM's background investigation report and/or implemented the incorrect type of follow-up evaluation (medical tests/exam) does not prove pretext to mask discrimination.
Thereafter, the Agency issued its final order fully implementing the AJ's decision. The instant appeal followed. Complainant argues Egan does not apply and that he proved discrimination.
In opposition to the appeal the Agency argues that Egan applies, and that its final order should be affirmed.
ANALYSIS AND FINDINGS
We agree with the AJ that Egan applies. Accordingly, the Commission does not have jurisdiction to review the substance of the Agency's decision to suspend Complainant's security clearance. See also, EEOC's 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).
The record reflects that the Agency suspended Complainant from performing his regular duties because doing so required a security clearance. Instead, while Complainant's security clearance was suspended, the Agency assigned him desk work that did not require access to classified information. Further, the record shows that the Agency directed Complainant to undergo psychological tests/exam in accordance with the U.S. Department of State Adjudicative Guidelines for Determining Eligibility for Access to Classified Information so the Agency could determine whether to reactivate his clearance. The Agency articulated legitimate, nondiscriminatory reasons for these actions, and Complainant has not proved they are pretext to mask discrimination. Further, we find that the Agency's requirement that Complainant undergo a psychological examination did not violate the Rehabilitation Act because this was job-related and consistent with business necessity - Complainant needed a security clearance to perform essential functions of his job. See generally, Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120121517 (Feb. 12, 2015).
The Agency's final order is AFFIRMED because the Commission does not have jurisdiction over the Agency's decision to suspend Complainant's security clearance, the AJ's issuance of a decision without a hearing was appropriate, and a preponderance of the record evidence does not establish that discrimination occurred.
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 (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 28, 2017
_____________________
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 The issues which the parties stipulated were to be adjudicated by the AJ were the same ones previously accepted by the Agency for investigation, which included Complainant being told to stay out of the office. Previously, in his investigatory affidavit, Complainant clarified that he was asked if he had any leave he would like to take, used his remaining leave to save himself the embarrassment of facing his coworkers prior to the holiday, and indicated that upon his return about 10 days later was given desk work and was restricted from normal duties.
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0120152418