Paul D.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation (FBI)), Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120172253 (E.E.O.C. Nov. 6, 2018)

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

Paul D.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation (FBI)),
Agency.

Appeal No. 0120172253

Hearing No. 570-2015-00597X

Agency No. FBI-2013-00228

DECISION

On June 14, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency’s final order dated May 11, 2017,
dismissing his complaint of unlawful 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

At the time of events giving rise to this complaint, Complainant was an applicant for the position
of Electronics Technician, GS-07/09 at the FBI’s New York Office in New York, New York.

On August 12, 2013, Complainant filed an equal employment opportunity (EEO) complaint, as
amended, alleging that the FBI discriminated against him based on his disability and reprisal for
prior protected EEO activity under the Rehabilitation Act when on June 21, 2012, he was deemed
“unsuitable” for employment by the FBI due to security clearance considerations.

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.
0120172253

2
By email on June 9, 2011, Complainant was notified that he was conditionally hired for the above
position, subject to obtaining a Top-Secret security clearance, which is required for all people
employed by the FBI. By letter to Complainant dated June 21, 2012, the FBI informed him that it
denied his application for a security clearance.

Following an investigation, Complainant requested a hearing before an Equal Employment
Opportunity Commission Administrative Judge (EEOC). The Agency filed a motion to dismiss
with the AJ, arguing that Complainant’s complaint failed to state a claim because the EEOC is
precluded from reviewing both the substance of a security clearance decision and the validity of
the requirement of a security clearance for a positon. Complainant opposed the dismissal, and the
Agency filed a sur-reply.

Thereafter, the AJ, citing authority relevant to the EEOC’s jurisdiction on complaints regarding
security clearances, dismissed Complainant’s complaint for failure to state a claim.

The Agency then issued a final order fully implementing the AJ’s decision. The instant appeal
followed.

Complainant argues that the Agency’s final order should be reversed. In opposition to the appeal,
the Agency argues that its final order should be affirmed.

ANALYSIS AND FINDINGS

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).
Section 703(g) is an affirmative defense to a charge of discrimination. However, 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.

Complainant contended that as part of the security clearance process, he saw a polygraph examiner,
who misrepresented things he said and did, resulting in the denial of his clearance. Even if this is
true, once statements (or other information) gathered during the investigation are included in the
security clearance investigative report, the statements are squarely within the rubric of a security
clearance determination and, accordingly, beyond the Commission's jurisdiction. Branigan v.
Department of Defense, EEOC Appeal No. 01973495 (Jan. 9, 1988). Complainant’s complaint
regards the denial of his security clearance, and connected declination to hire him. Because we do
not have jurisdiction over the Agency’s decision to deny Complainant his security clearance and
he does not challenge that obtaining one was a condition of employment, his complaint fails to
state a claim.

The Agency’s final order is AFFIRMED.
0120172253

3
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.

0120172253

4
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 6, 2018
Date