0120181023
07-17-2018
Mitchell H.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mitchell H.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181023
Agency No. ARAPG15OCT04151
DECISION
On January 29, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD) dated January 11, 2018, concerning his equal employment opportunity (EEO) complaint alleging 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
At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer, GS-855-15 under the Agency's Research, Development and Engineering Command (Command), Communications-Electronics, Research, Development and Engineering Center (CERDEC), Intelligence and Information Warfare Directorate (12WD), Cyber Offensive Operation Division, at Aberdeen Proving Ground, Maryland.2
On December 10, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race/national origin (Asian/born in mainland China) when on February 13, 2015, his Command suspended his security clearance without a meaningful explanation, and the Agency's Department of Defense Central Adjudication Facility (DoD CAF) still had not arrived at a final decision on his clearance nor issued a letter (called the Statement of Reasons) explaining its determination.3
Following an investigation, the Agency provided Complainant a notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not request a hearing because he decided he wanted a FAD without one. The Agency issued a FAD finding no discrimination.
Complainant served as a senior research engineer organizing the full spectrum of activities involved in the research, development, and execution of Signals Intelligence and Information Warfare (SIGNT/IW).
By memorandum to Complainant dated February 13, 2015, his first line supervisor (S1 - Caucasian, born in America), signing for his second line supervisor (S2), notified him that his clearance was suspended pending an adjudication by DoD CAF (on whether to revoke his clearance). Therein, S2 cryptically explained that the reason therefore was that "the command was recently provided counterintelligence information...."
S1 stated that S2 gave the instruction to suspend Complainant's clearance after he met with Command Senior Leadership who viewed the counterintelligence information to be compelling enough to decide to suspend Complainant's clearance. Successor S2 (White, national origin Russian, Ukrainian, English, Irish, Polish), who assumed this role in April 2015, stated that it was his understanding that that the suspension was based on a document that was classified. S1, Successor S2, the Security Specialist/Security Manager for 12WD (White, national origin United States) who served as a point of contact on the security clearance matter were not advised of the contents in the counterintelligence document. According to the Senior Intelligence and Security Legal Advisor with the Operations and Personnel Division, Army Office of General Counsel (White, national origin United States), who was not aware of the events of February 2015, it is not uncommon for a person whose clearance is suspended by his command not to be informed reasons therefore, especially when the reasons are classified.
The Headquarters Chief of Security and Protection Planning (Black, national origin African American), who supervised Security Manager for 12WD, stated that the Command did not have the power to revoke Complainant's clearance, only DoD CAF did. The Security Manager for 12WD stated that when DoD CAF issues an Intent to Revoke Security Clearance letter, it attaches the Statement of Reasons (SoR) therefore. On March 28, 2016, DoD CAF issued an Intent to Revoke Security Clearance regarding Complainant with the attached SoR. CERDEC received this package on March 30, 2016, and provided it to Complainant the next day. The SoR was classified. The Headquarters Chief of Security and Protection Planning stated that in his experience the range in time for DoD CAF to issue the SoR is 6 to 24 months. Complainant's took about 13 months. The Security Manager for 12WD stated that SoR reflected a very complex process that required much checking and cross checking. S1 stated that the length of time before the affected person receives the SoR depends on the person's level of clearance, allegations, and workload of DoD CAF. Complainant had a top-secret clearance with access to sensitive compartmented information.
The February 13, 2015 letter notifying Complainant that that his clearance was suspended also notified him that he would be placed on non-sensitive duties until the DoD CAF completed the adjudication on his clearance.
In its FAD, the Agency found that Complainant's claim that he was discriminated against when his security clearance was revoked fails to state a claim. It cites to EEOC cases that ruled the EEOC does not have jurisdiction over a decision to deny a security clearance. The Agency further found that while claims related to a security clearance that don't require considering the merits of a denial decision may be within EEOC's jurisdiction, this cannot be reached here because the reason for the denial was classified. The Agency concluded that Complainant failed to prove discrimination. The instant appeal followed.
Complainant explicitly represents that he does not complain that his security clearance was revoked and he had no intent to comment on any adjudicative judgment. Rather his complaint regarded his clearance being suspended without a meaningful explanation. But like he did in his affidavit, Complainant disputes the reasons for the revocation. For example, in his investigative affidavit Complainant writes with criticism that the SoR citied activities as early as the 1980s with no recent activity after 2010, did not mention a counterintelligence report, and that if the true reason for the counterintelligence report can't be found, his clearance should be reinstated. On appeal, Complainant writes that the allegations in the SoR were based on recording errors, fake stories, false statements, and groundlessly accused him of paying off his mortgage early after he visited China in 2007.
The record reflects that Complainant appealed the Letter of Intent to revoke his security clearance, as part of his due process rights. It does not reflect the results of the appeal.
In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
On appeal, Complainant explicitly denies that his EEO complaint concerns the revocation of his clearance, and we accept this. In any event, the Commission does not have jurisdiction to review an agency's determination on the substance of a security clearance decision. Policy Guidance on the Use of the National Security Exception Contained in � 703(g) of Title VII of the Civil Rights Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989) (Guidance); Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988). This applies both to suspensions and revocations of security clearances. Section 703(g) is an affirmative defense to a charge of discrimination, and the Agency raised this defense.
Complainant alleges that the Agency discriminated against him based on his race/national origin (Asian/born in mainland China) when on February 13, 2015, his Command suspended his security clearance without a meaningful explanation, and it took 13 months for DoD CAF to arrive at its decision to revoke his clearance and issue the SoR. The legislative history of � 703(g) makes it clear that the Commission is not precluded from determining whether the grant, denial or revocation of a security clearance is conducted in a nondiscriminatory manner. Guidance. Because Complainant's allegations go to process, not the substance of the reasons for the Agency's decisions to suspend and revoke his clearance, we have jurisdiction over his complaint.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Personal Security Program, Army Regulation 380-7, Chapter 8-1 provides:
Except as provided for below, no unfavorable administrative action shall be taken under the authority of this regulation unless the person concerned has been given: (a) A written statement of the reasons why the unfavorable administrative action is being taken. The statement shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 USC 552a) and national security permit....
(4) If the person needs access to classified information in order to prepare a response to the LOI [letter of intent], CCF [central clearance facility] may authorize limited access for that specific purpose.
For purposes of discussion, we will assume the first part of this regulation applies to the February 2015, letter notifying Complainant that the Command suspended his clearance.
The Senior Intelligence and Security Legal Advisor stated that it is not uncommon for a person whose clearance is suspended by his command not to be informed reasons therefore, especially when the reasons are classified. Consistent with this, while the Command informed Complainant that the suspension was based on counterintelligence information, the record reflects that this information was classified. In fact, S1, Successor S2, and the 12WC Security Manager were not advised of the content of the counterintelligence document. Also, further consistent with this is that the referenced regulation provides that the explanation shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 USC 552a) and national security permit. The record does not show that this regulation was violated. We note that the Command suspended Complainant's clearance pending adjudication by DoD CAF, which had the final authority on what was relevant regarding Complainant keeping his clearance.
When DoD CAF issues a letter of intent to revoke a clearance, it is accompanied by a SoR. Regarding the delay by DoD CAF, the Security Manager for 12WD stated that the SoR reflected a very complex process that required much checking and cross checking. S1 stated that the length of time before the affected person receives the SoR depends on the person's level of clearance, allegations, and workload of DoD CAF. The Headquarters Chief of Security and Protection Planning stated that in his experience the range in time for DoD CAF to issue the SoR is 6 to 24 months. Complainant's took 13 months.
We find that the above constitutes the Agency's legitimate, nondiscriminatory reasons for its actions, and Complainant has not shown they are pretext to mask discrimination.
Complainant has failed to prove discrimination. Accordingly, the FAD is AFFIRMED.
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
July 17, 2018
__________________
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 From around August 2014 to September 2015, Complainant was on a long term temporary duty (TDY) detail as a researcher with the Defense Science and Technology Lab in the United Kingdom.
3 The Agency defined the complaint as Complainant learning on September 21, 2015, that his security clearance was still "revoked" with no explanation. Our definition better captures Complainant's complaint. Also, while Complainant used the terms "suspended" and "revoked" interchangeably in his complaint, the record reflects that the correct terms of art are that his clearance was suspended pending a decision on whether to revoke by DoD CAF.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181023
6
0120181023