Michell B.,1 Complainant,v.Dan Coats, Director, Office of the Director of National Intelligence, Agency.

Equal Employment Opportunity Commission

May 23, 2018

0520180233 (E.E.O.C. May. 23, 2018)

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

Michell B.,1
Complainant,

v.

Dan Coats,
Director,
Office of the Director of National Intelligence,
Agency.

Request No. 0520180233

Appeal No. 0120172545

Agency No. 2017-F-004

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120172545 (January 5, 2018). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In her underlying complaint, Complainant alleged that the Agency discriminated against her based
on her sex (female) and in reprisal for prior protected EEO activity:

1. By denying staffing firms 1 and 2 requests, on her behalf, for “crossover” clearances
(reciprocal acceptance of access eligibility determinations under the Department of
Defense and/or Intelligence Community Policy Guidance), resulting in her not being
able to serve at Agency facilities and thus denying her employment. Specifically:
a. on March 10, 2016, staffing firm 1 submitted a crossover request for her to
support National Intelligence Council conferences,

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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b. on July 25, 2016, staffing firm 2 submitted a crossover request for her to support
the National Counterterrorism Center, and
c. on October 15, 2016, staffing firm 2 submitted a crossover request for her to
support the National Counterterrorism Center,

all of which were denied.

The Agency dismissed Complainant’s complaint for failure to timely initiate EEO counseling and
failure to state a claim. It reasoned, in relevant part, that Complainant did not initiate EEO
counseling until November 30, 2016, beyond the 45-calendar day time limit, that she was not an
applicant to be an Agency employee, and that the Commission does not have jurisdiction to review
the substance of a security clearance determination. Complainant appealed the Agency’s
dismissal.

In our prior decision, the Commission affirmed the dismissal of issues 1(a) and 1(b). The
Commission reversed the Agency’s dismissal of 1(c) as untimely. The prior decision determined
issue 1(c) did not involve a security clearance determination and found that the Commission has
jurisdiction to review issue 1(c). In addition, the decision concluded that “for purposes of
determining whether Complainant’s complaint at this point states a claim, we find that it is more
likely than not that the Agency had and would have sufficient control over Complainant’s
employment to be her common law joint employer.”

After reviewing the previous decision and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 0120172545 remains the Commission's
decision. There is no further right of administrative appeal on the decision of the Commission on
this request. The Agency shall comply with the Order as set forth herein.

ORDER
The Agency is ordered to process claim 1(c), as numbered and identified in this decision, in
accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the 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 the
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.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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.
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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

May 23, 2018
Date