[Redacted], Giselle T., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003863 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle T.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020003863 Hearing No. 570-2019-00960X Agency No. FBI-2018-00171 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision final order dated June 16, 2020, dismissing a formal complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Management and Program Analyst, GS-13, at the Agency’s International Protocol Unit, International Operations Division in Washington, D.C. 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. 2020003863 2 On April 10, 2018, Complainant filed a formal complaint claiming that the Agency discriminated against her because of her race, sex, disability, and age when, on November 6, 2017, and continuing, Complainant was suspended indefinitely. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, and the Agency submitted a Motion to Dismiss on April 22, 2020. The AJ provided Complainant until May 4, 2020, to submit an opposition. Complainant did not timely respond and the AJ determined that Complainant’s counsel did not provide good cause for failing to timely file. Subsequently, the AJ summarily adopted the Agency’s motion to dismiss. The AJ found that the Commission did not have the authority to examine the suspension of Complainant’s top security clearance which, it claims, directly resulted in Complainant’s indefinite suspension. On June 16, 2020, the Agency issued a final order adopting the AJ’s dismissal. The instant appeal followed. On appeal, Complainant, through counsel, argues that she provided good cause for failing to meet the May 4, 2020 submission deadline. Complainant further argues that the Agency mischaracterized her claim. Complainant explains that she was not seeking review of the decision to suspend her top security clearance. Rather, Complainant asserts that her claim “predate[s] the suspension of the security clearance.” ANALYSIS AND FINDINGS Untimely Opposition - No Good Cause As an initial matter, we address Complainant’s attorney’s argument that he provided good cause for failing to timely submit an opposition statement by the May 4, 2020 deadline. On appeal, the attorney explains that after receiving an email from the AJ on May 5, 2020, he requested a one- day extension to submit an opposition. The attorney explains that the submission was late because another attorney in his office had contracted Covid-19, the entire staff had to quarantine for two weeks, and he could not meet with Complainant to complete the opposition. We agree with the AJ that Complainant’s attorney has not provided good cause for extension of the May 4, 2020 deadline. We note that the attorney did not inform the AJ about his inability to contact Complainant before the deadline or notify the AJ of his office staff being on quarantine. Additionally, the attorney did not explain why he was unable to contact Complainant via phone or email because the attorney could not meet in-person while quarantining. Given the unique circumstances of this situation, we find that Complainant’s attorney has not provided good cause for failing to meet the May 4, 2020 deadline to respond the Agency’s motion to dismiss. 2020003863 3 Security Clearance Determination - Jurisdiction The Commission does not have jurisdiction to review an Agency’s determination with regard to either the substance of the security clearance decisions or the validity of the security clearance requirement itself. See Section 703(g) of the Civil Rights Act of 1964, as amended, EEOC Notice No N-915-041 (May 1, 1989). Here, the record shows Complainant’s position required that she maintain a top security clearance as a condition of employment. Consequently, when Complainant’s security clearance was suspended, she was also suspended indefinitely from the Agency. In this case, Complainant’s suspension from employment is directly related to a security determination. The Assistant Director of Security explained that management referred Complainant to him out of concern that Complainant’s behavior posed security concerns related to the National Security Adjudicative Guideline I - Psychological Conditions of the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position. Testimony from two management officials explained that Complainant informed them that she wanted to choke and kill the Unit Chief Driver, and she had voices in her head that she believed were from God telling her not to harm the Unit Chief Driver. The Assistant Director explained that, based on these actions, a security clearance investigation was conducted to determine whether to maintain, suspend, or revoke Complainant’s clearance. The Assistant Director further noted that he was the management official who determined to suspend Complainant’s clearance.2 We note that the Assistant’s Director’s decision to suspend Complainant’s security clearance is not within the Commission purview because Title VII does not authorize the review of the substance of security clearance decisions. Despite Complainant’s argument on appeal, we do not find that Complainant’s complaint consists of additional claims besides her security clearance suspension. On appeal, Complainant asserts that her claims of discrimination predated her November 6, 2017 suspension. We note that the Agency acknowledged, in its August 17, 2018 letter of acceptance that Complainant also raised additional claims consisting of a denial of a cash or time-off award; being required to undergo a fitness-for-duty examination; not being permitted to end a temporary duty assignment; and not being permitted to either attend conferences or travel. However, the Agency indicated that these discrete actions were untimely raised and were not brought to the attention of an EEO Counselor within the 45-day limitation period. The record reflects that Complainant did not initiate EEO Counselor contact until March 12, 2018, and the Agency dismissed these claims, pursuant to 29 C.F.R § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed Complainant’s harassment claim arguing that the previously discussed claims did not occur within the 45-day limitation period to contact an EEO Counselor. 2 The record reflects that Complainant’s security clearance was ultimately reinstated in April 2018. Complainant underwent a psychological fitness-for-duty evaluation by a psychologist and psychiatrist on December 19, 2017, which found Complainant to be psychologically fit for duty. 2020003863 4 The Agency further indicated that Complainant’s claim that the Unit Chief harassed her was not sufficiently hostile to create a claim of harassment because Complainant failed to identify specific actions the Unit Chief allegedly took against her. The Agency further dismissed another claim, pursuant to 29 C.F.R § 1614.107(a)(1), for failure to state a claim. Complainant alleged that in January 2018, her co-workers packed up and removed documents for her desk. The Agency, however, determined that this matter failed to state a claim because Complainant was not aggrieved. We note that the August 17, 2018 letter of acceptance further informed Complainant that is she disagreed with the Agency’s dismissal of the claims discussed above, she had fifteen days from the date of the decision to indicate her objection. The record does not indicate that Complainant submitted an objection, and Complainant cannot do so for the first time on appeal. Consequently, the only claim at issue was Complainant’s indefinite suspension. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s dismissal of the formal complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2020003863 5 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003863 6 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 4, 2021 Date