Opal V.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120182323 (E.E.O.C. Dec. 19, 2018)

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

Opal V.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182323

Agency No. DON-17-00183-01798

DECISION

On July 6, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated June 7, 2018, dismissing
her 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed as an Industrial
Hygienist, GS-0690-11 at the Navy Medical Center Portsmouth in Portsmouth, Virginia
(“Portsmouth”).

On February 9, 2018, Complainant was offered a position of Life Scientist, GS-0401-11, with the
Naval Safety and Environmental Training Center in Norfolk, Virginia (“Norfolk”), conditioned on
receiving an interim security clearance, which did not happen, resulting in the offer being
withdrawn on March 14, 2018. Portsmouth and Norfolk are separate organizations with separate
hiring authorities.

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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On May 15, 2018, Complainant filed an equal employment opportunity (EEO) complaint
(“Complaint 2”), the one before us, alleging that Portsmouth discriminated against her based on
her national origin (Black, West Indian), disability and reprisal for prior protected EEO activity
when:

1. Starting on October 30, 2017, the Portsmouth Security Manager intentionally refused to
comply with the Agency’s Bureau of Medicine and Surgery (BUMED) Instruction 5510.11
and Secretary of the Navy (SECNAV) M-5510.30 which required her to monitor, query,
accurately record and follow-up on investigation requests for Complainant’s security
clearance case pending before the Department of Defense Central Adjudication Facility
(“DoD CAF”), resulting in a delayed adjudication by DoD CAF and the rescission of a job
offered to her by Norfolk and other job opportunities.

2. After the Norfolk Security Manager on February 12, 2018, inquired about the status of her
security clearance [which was still suspended], the Portsmouth Security Manager did not
reply until February 20, 2018, contributing to Norfolk rescinding her job offer.

Prior to the events in her complaint, on or about May 23, 2017, the Portsmouth Security Manager
had filed an Incident Report with DoD CAF regarding Complainant. She also suspended
Complainant’s security clearance. These actions are within her function. BUMED Instruction
5510.11, Chap. 5.3.a., p. 31 (Apr. 6, 2016).2 Thereafter, in September 2017, Complainant initiated
EEO counseling alleging discrimination on these two actions, which we refer to as “Complaint
1.”3 On November 11, 2017, the parties entered into a settlement agreement to resolve Complaint
1, where the Agency agreed in relevant part to:

7.
f. Continue Complainant in a paid Administrative Leave status not to exceed April
30, 2018, which will be vitiated upon the Complainant’s procurement of other
employment prior to April 30, 2018….

i. Restore the Complainant’s access to her computer which had been temporarily
withdrawn, effective the date of this agreement.

2 It reads: “The DoD CAF, at the direction of SECNAV, is responsible for making all eligibility
determinations for all military and civilian personnel within the DON [Department of the Navy].
The DoD CAF is the final authority for granting, denying, and revoking all security clearances and
determining eligibility for sensitive positions. The CSMs [Command Security Managers] have the
authority to temporarily suspend access to classified information and/or assignment to a sensitive
position when derogatory information warrants such action.” While Complainant refers to
BUMED Instruction 5510.11, a copy thereof is not in the record. We take administrative notice of
this instruction.

3 We are unable to discern if Complainant filed a formal complaint connected to this EEO contact.
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j. Complainant understands that the Agency has no control over the Department of
Defense Consolidated Adjudication Facility's (DODCAF's) decision to adjudicate
her security clearance to restore access to controlled spaces. If Complainant applies
for another government job through April 30, 2018 and there is a question regarding
her security clearance, [the Portsmouth Security Manager] will be the point of
contact…. On October 30, 2017, [the Portsmouth Security Manager] submitted a
Final Report closing the Incident Report dated May 23, 2017. If contacted about
[Complainant’s] security clearance, [the Portsmouth Security Manager] will say:
"the incident Report was generated based on the allegations of a new-hire who
believed that [Complainant] was an insider threat. The matter was referred to NClS
[the Naval Criminal Investigative Service], which determined that the allegations
were unfounded and closed the investigation. After that, the Command sent a final
report to DODCAF requesting that it close the file."….

Complainant agreed in the settlement agreement, in part, to resign by April 30, 2018.

The Agency dismissed Complaint 2 in its entirety for failure to state a claim. It reasoned, based on
the language in the settlement agreement of Complaint 1, that Complainant understood that
Portsmouth had no control over DoD CAF’s decision to adjudicate her security clearance and
restore access to controlled areas. The Agency observed that DoD CAF had not done its
adjudication when Complainant applied for a job at Norfolk. The Agency also found that issues 1
and 2 were addressed in the settlement agreement, and if Complainant believed that the Agency
failed to comply with its terms, she should allege breach and follow breach claim procedures. The
instant appeal followed.

Complainant, who is represented by counsel, writes that she is not claiming the Agency breached
the settlement. Rather, she is alleging that the Portsmouth Security Manager took discriminatory
and retaliatory actions against her outside the terms of the settlement agreement, after it was
signed. She argues that on October 30, 2017, the Portsmouth Security Manager submitted a request
to DoD CAF to dismiss the incident report previously filed. However, DoD CAF has a huge case
backlog, and because of this such a request may go unnoticed and unattended for a significant time
by DoD CAF. To address this, the Agency in BUMED Instruction 5510.11 and SECNAV M-
5510.30 requires its security managers to monitor, query, accurately record and follow-up on
submissions to DoD CAF. Complainant argued that while the Portsmouth Security Manager
submitted a request to dismiss the incident report to DoD CAF, as required by the settlement
agreement, she failed to follow up with DoD CAF, as required by the above Agency instructions.
Moreover, she did not promptly reply to Norfolk’s inquiry about the status of Complainant’s
security clearance. The result of these inactions, according to Complainant, was the rescission of
the Norfolk job offer.

Complainant further argues that the FAD presupposes that the Portsmouth Security Manager did
not have to perform her ongoing duties as Complainant’s security manager because the terms of
the settlement agreement do not specifically require her to do so.
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If that were legally true, according to Complainant, it would require parties in all future settlement
agreements to specifically state that the discriminating management official must, in the future,
provide all duties, terms, and benefits to the complainant that she is otherwise obligated to provide.
Such a provision basically would be an agreement not to retaliate against Complainant, which the
Agency is obligated to do anyway, and hence is unenforceable for want of consideration.

ANALYSIS AND FINDINGS

We disagree with Complainant’s argument that issue 1 is outside the scope of her settlement
agreement, and constitutes a new claim of discrimination and retaliation. In the settlement
agreement, Complainant specifically agreed that “the Agency has no control over… DODCAF's…
decision to adjudicate her security clearance to restore access to controlled spaces.” But in
Complaint 2, she alleges that the Portsmouth Security Manager did nothing to encourage DoD
CAF to speed up its adjudication. In essence, Complainant contends the Navy is responsible for
the DoD CAF’s slow processing, when in the settlement agreement she specifically agreed it was
not responsible.

We disagree with the premise of Complainant’s argument that since BUMED Instruction 5510.11
and SECNAV M-5510.30 already requires its security managers to monitor, query, accurately
record and follow-up on submissions to DoD CAF, the Portsmouth Security Manager’s failure to
do so is not within the scope of the settlement agreement.

SECNAV M-5510.30, Chap. 6-17 (June 2006), to which Complainant on appeal quotes at length,
provides in relevant part that:

6 – 17 FOLLOW-UP ACTIONS ON INVESTIGATIVE REQUESTS….

2. Request Follow-up. Commands are required to monitor requested investigations
to ensure they are initiated, completed and adjudicated as required. JPAS [Joint
Personnel Adjudication System] provides the status of investigations and should be
consulted within 30 days of submission of request to ensure the request is initiated.
If JPAS reflects the investigation is still pending, query OPM [Office of Personnel
Management] for status. If JPAS reflects the [security] investigation closed at least
3 months ago and you have not received an adjudication decision, a query to the
DON CAF [Department of the Navy Central Adjudication Facility] is appropriate.

The specific relevant language Complainant refers to (which is in SECNAV M-5510.30) reads in
relevant part, “If JPAS reflects the [security] investigation closed at least 3 months ago and you
have not received an adjudication decision, a query to the DON CAF is appropriate.” DON CAF
is or was part of the Navy, while DoD CAF is the adjudicatory function for the Department of
Defense, which includes the Navy and other agencies. Complainant was awaiting a response from
DoD CAF, not DON CAF.

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Further, while Complainant argues that under the instructions the Portsmouth Security Manager is
required to “monitor, query, accurately record and follow-up” with DoD CAF, seeming to suggest
a form of supervision or active involvement, SECNAV M-5510.30 anticipates that security
managers will merely ask for DON CAF for status, if “appropriate,” and in doing so refers to DON
CAF, not DoD CAF. We find Complainant is using issue 1 in Complaint 2 to circumvent the
parties’ settlement agreement, and the Agency’s dismissal of issue 1 is affirmed.

We agree with the Agency that issue 2 fails to state a claim. The Portsmouth Security Manager
replied to the Norfolk’s Security Manager status inquiry eight days after it was made - two weeks
before Norfolk withdrew the conditional offer. In any event, the status was that Complainant’s
clearance was suspended. Complainant was not aggrieved by this delay, which was not excessive.
We also find that the delay would not reasonably likely deter future EEO activity.

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.
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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

December 19, 2018
Date