01982802
12-10-1999
Linda K. Campbell-Howard, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Linda K. Campbell-Howard, )
Complainant, )
) Appeal No. 01982802
v. ) Agency No. 95110750
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female) and in reprisal for prior EEO activity
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges she was discriminated
against when false accusations of security violations resulted in the
revocation of her Sensitive Compartment Information (SCI) access and
security clearance. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the FAD.
The record reveals that during the relevant time, the agency employed
complainant as a GS-11 Technical Information Specialist at the agency's
Special Security Office Library at agency Headquarters in Washington, DC.
Believing the agency discriminated against her, complainant sought EEO
counseling and filed a complaint on January 4, 1996. At the conclusion
of the investigation and after complainant failed to timely request a
hearing before an EEOC Administrative Judge, the agency issued a final
decision concluding that complainant failed to establish a prima facie
case of either discrimination or retaliation. On appeal, complainant
restates her arguments. The agency requests that we affirm its FAD.
Upon review of the record, we find that complainant's supervisor (S1)
suspended complainant's access to classified material in February 1995
pending the outcome of an investigation to determine if information
contained in a December 1994 memorandum she sent to him and to another
agency official was classified. Upon completion of the investigation
in May 1995, the Central Personnel Security Clearance Facility (CCF)
notified complainant of their intent to revoke her SCI access and her
security clearance. In October 1995, her then supervisor (S2) recommended
the revocation �based on her commission, knowingly or unknowingly, of
collateral and SCI security violations.� CCF reinstated complainant's
access in January 1996 with an admonition that she familiarize herself
with the standards of conduct required of someone in her position.
Complainant alleges that agency officials took these actions against her
because of her race and sex and because she filed an EEO complaint in
connection with her successful challenge of a previous agency attempt
to have her clearance revoked.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases), the Commission agrees with the agency that complainant
failed to establish a prima facie case of race or sex discrimination.
In reaching this conclusion, we note that there were no similarly situated
employees outside of complainant's protected classes who committed
security violations<2> and that complainant presented no evidence to
support her bare allegations that the agency's actions were motivated
by discriminatory animus towards her race or sex. Complainant herself
suggests that agency officials were motivated by the fact that she was
abrasive and more forthright in her criticisms of agency policy than
military personnel.
We also agree with the agency's conclusion that complainant failed to
establish a prima facie case of retaliation. In reaching this conclusion,
we note that although both S1 and S2 had some knowledge of complainant's
prior EEO activity, the investigation was initiated because of S1's
belief that complainant mailed classified information in an unauthorized
manner; removed a computer disk used in a classified computer without
permission; and revised a document on the disk and printed it in an
unclassified system. Complainant admits to two of the three allegations.
S2 believed that complainant's refusal to be knowledgeable about and/or to
follow the Army's governing security regulation, AR 380-28, coupled with
her history of poor judgment in the handling, processing and protecting
of classified material, represented a risk to his security operation.
In view of these considerations, particularly the fact that complainant
admits to two of the three infractions, we conclude that complainant
was not meeting the legitimate security expectations of her position,
and we decline to infer that her supervisor's actions were motivated
by retaliatory animus. Moreover, she has failed to prove that she was
falsely accused of security violations, and the record establishes that
her security clearance was not revoked. See Devereux v. United States
Postal Service, EEOC Request No. 05960869 (April 24, 1997).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S1199)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
December 10, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________
__________________________1 On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website at WWW.EEOC.GOV.
2 Complainant is a civilian employee of the agency. The three other
reported security violations were committed by military employees (all
female; two Black; one White).