[Redacted], Glynda S., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2022000548 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Glynda S.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2022000548 Hearing No. 530202100141X Agency No. 63202000489D DECISION On November 9, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a decision issued by an EEOC Administrative Judge (“AJ”) dated September 30, 2021,2 concerning a complaint of unlawful employment discrimination alleging violations 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. 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 The Agency submitted a “Final Order” dated November 15, 2021, which the Commission will consider as a response brief to Complainant’s timely filed appeal. 2022000548 2 BACKGROUND At the time of events giving rise to this complaint, Complainant had accepted a conditional employment offer for the position of Regional Technician, GG-12, Step 1, for the Field Division, of the Santa Clara County California Area Census Office. On May 5, 2020, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of sex (female), disability, age (63), and reprisal for prior protected EEO activity when:3 1. From November 2019 through April 2020, Complainant’s on-boarding was delayed because the Agency conducted a background check (suitability determination) instead of applying reciprocity and accepting her acceptable background check on record and secret level security clearance in accordance with 5 C.F.R. § 731.202(d), and, 2. On April 10, 2020, Complainant was notified that her employment with the Agency was denied because the background check resulted in an “unfavorable” determination. The Agency accept the complaint and conducted an investigation. The evidence developed during the investigation shows that on September 25, 2019, the Agency notified Complainant by email that she had been selected for the position of Regional Technician, GS-12, with a preferred start date of November 13, 2019, “pending a background check clearance” or, “if her [background check] clearance gets delayed,” November 25, 2019. Complainant accepted the initial offer, and, as she was a retired annuitant, she was offered the position as an Excepted Service Appointment. The “background check clearance” referred to a suitability determination in accordance with 5 C.F.R. § 731. It is undisputed that the Regional Technician, GS-12, position did not concern national security, and did not require a security clearance. However, Regional Technician, GS- 12, was a “Public Trust” position, and, in this case, a position filled by appointment. Either factor would be sufficient to trigger the Agency’s obligation to ensure the selectee had a favorable suitability determination before extending a formal offer. See 5 C.F.R. §§ 731.104, .106, and .203. On October 29, 2019, the Agency issued a conditional offer letter to Complainant, which, among other things, specified: “Your start date will be determined upon a favorable determination by the Census Investigative Services (“CIS”) Office. If you are currently employed, please do not resign from your position until you receive an official offer of employment and a start date.” 3 For clarity, the Commission reframed the complaint as two claims based on Complainant’s appellate argument, and consistent with her formal complaint and the EEO Counselor’s Report. 2022000548 3 The letter also explained how to obtain and submit necessary documents to the Agency’s Los Angeles Regional Census Center (“LARCC”), to be used for the background check clearance. Shortly after receiving the letter, Complainant obtained a release/transfer date of November 23, 2019, from her employer at the time (Department of Defense). Although she had not received an official offer, Complainant understood, based on communications with Human Resources (“HR”), that the Agency was eager for her to start, and she was scheduled to begin on-boarding on November 25, 2019. She was also confident that CIS would apply the “reciprocity provision,” 5 C.F.R. § 731.202(d),4 and promptly issue her a “favorable determination” based on her status as a current federal employee, and documentation confirming that she had an acceptable suitability determination on record, as well as a “Secret” security clearance. On December 2, 2019, the CIS Administrative Specialist, GS-12, (“AS”) (male, 31) assigned to conduct Complainant’s background check sent her a link and pass code to a questionnaire within the Electronic Questionnaires for Investigations Processing (“e-QIP”) system, explaining that it was “required for all background investigations and reinvestigations.” Complainant completed it the same day. She had already voiced concerns with HR and the CIS Office, as she had yet to receive her favorable determination which was preventing her from onboarding. A week after submitting the e-QIP survey, Complainant had not heard back from AS, so she filed a complaint with the Agency’s Investigator General (“IG”). In January 2020, Complainant asked the AS’s supervisor, a Supervisory Administrative Specialist, GS-13, (“SAS”) (female, 39), for an update. SAS indicated that Agency Headquarters was determining whether Complainant’s documentation allowed for reciprocity to expedite the process. In February 2020, Complainant emailed SAS and AS again, and AS revealed that he had been waiting for Complainant’s clearance documents and had only just started reviewing them. Complainant resubmitted documentation to support reciprocity under 5 C.F.R. § 731.202(d). Complainant suspected that SAS and AS were refusing to apply reciprocity in retaliation for her complaint to the IG, which she identifies as protected EEO activity. On March 10, 2020, AS confirmed with Complainant that he verified her documentation, including a 2016 Certificate of Investigation from a NACI for the Department of Labor (former employer) where she was deemed “Favorable” pursuant to the suitability criteria under 5 CFR 731, as well as Complainant’s Clearance Verification Memorandum and SF-75. He explained that because her Security Clearance contained her most recent suitability determination it “takes precedence.” As suitability determinations for Secret Clearances were based on Executive Order 12698 (“EO 12698”), AS informed Complainant that he was adjudicating her clearance under EO 12698, as opposed to 5 C.F.R. § 731. 4 5 C.F.R. § 731.202(d) Reciprocity. An agency cannot make a new determination under this section for a person who has already been determined suitable or fit based on character or conduct unless a new investigation is required under §731.104 or §731.106, or no new investigation is required but the investigative record on file for the person shows conduct that is incompatible with the core duties of the relevant covered position. 2022000548 4 Over the next month, AS sent Complainant multiple information and document requests, to which she responded, and on an unspecified date, she underwent an Enhanced Subject Interview, based on clearance adjudication procedures. On April 10, 2020, the CIS Office formally notified Complainant that her employment with the Agency was denied due to an “unfavorable determination.” There was no right of appeal, but the email provided relevant EEO information and indicated that Complainant had standing to pursue an EEO complaint, if she “believ[ed] the decision to terminate [her] appointment was motivated by discrimination on the basis of race, color, sex, national origin, age, disability, or reprisal.” After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Upon review, the AJ determined that Complainant’s allegation would necessarily require a substantive review of the Agency’s decision on issuing a security clearance, which is outside the Commission’s jurisdiction. Accordingly, the AJ dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Because the Agency did not issue a Final Order within 40 days of receipt of the AJ's decision, the AJ’s procedural dismissal of Complainant’s complaint became the final action of the Agency. See 29 C.F.R. 1614.109(i). It is from this decision that Complainant appeals. ANALYSIS AND FINDINGS The AJ dismissed Complainant’s complaint for failure to state a claim, pursuant 29 C.F.R. § 1614.107(a)(1), because, as provided in Department of Navy v. Egan, the Commission does not have jurisdiction to review an agency's determination on the substance of a security clearance decision. 484 U.S. 518, 529 (1988), EEOC Policy Guidance on the Use of the National The 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) (“Security Guidance”). The Commission has jurisdiction over claims concerning suitability determinations. The Commission has previously held that an allegation that an agency withdrew an offer of employment based on the discriminatory application of a suitability determination states a claim within EEOC jurisdiction. See, e.g. Henry S. v. Dep’t of Def., EEOC Appeal No. 0720170020 (Mar. 28, 2018). In the instant complaint, Agency withdrew a job offer based on an “unfavorable determination.” The Regional Technician position had no security clearance requirement, and the governing regulation, 5 C.F.R. § 731, concerns suitability determinations only. Therefore, a question of whether the Agency was motivated by discrimination when it opted not to apply the § 731.202(d) reciprocity provision is reviewable by the Commission. Although the Agency determined that it was necessary to adjudicate Complainant’s security clearance, it did so within the context of completing a suitability determination. 2022000548 5 AS’s reliance on E.O. 12968 as a legal authority for adjudicating Complainant’s security clearance, would be limited to its confirmation of the Agency’s authority to conduct a suitability determination, not the substance or decision making with respect to the clearance itself. Part 2 of E.O. 12968 clarifies: “Determinations of eligibility for access to classified information shall be based on criteria established under this order. Such determinations are separate from suitability determinations with respect to the hiring or retention of persons for employment by the government or any other personnel actions [emphasis added].” Sec. 2.1(a). It also states: “This section shall not be deemed to limit or affect the responsibility and power of an agency head to make determinations of suitability for employment.” Sec. 2.1(f). The Commission has jurisdiction over non-substantive security clearance decisions. The bar of jurisdiction created by Egan and the national security exception to Title VII is not absolute. Henry S. v. Dep’t of Def., EEOC Appeal No. 0720170020 (Mar. 28, 2018) (EEOC had jurisdiction over discrimination allegation where agency rescinded a job offer based on an unfavorable suitability determination, even though it previously determined the complainant was suitable for employment, and the determination did not impact the complainant’s clearance). In Rattigan v. Holder, the D.C. Circuit held that Egan does not “insulate[] from Title VII all decisions that might bear upon an employee's eligibility to access classified information. Rather, the Court in Egan emphasized that the decision to grant or deny security clearance requires a “[p]redictive judgment' that ‘must be made by those with the necessary expertise in protecting classified information.”’ 689 F.3d 764, 767 (D.C. Cir. 2012) (emphasis in original), discussed in Henry S. Moreover, the Commission’s guidance notes that 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. Even assuming, arguendo, that the Agency sought to make a “security clearance decision,” rather than a “suitability determination,” this case presents a situation that is squarely within the Commission’s authority. Stacie P. v. CIA, EEOC Appeal No. 0120162226 (Mar. 7, 2017). Complainant’s allegation does not challenge the Agency’s judgment as to whether she should have access to sensitive information. Henry S., discussing Dodson v. Dep't of Def., EEOC Appeal No. 01954101 (Jun. 13, 1997) (discrimination found where manager sought to have an employee’s clearance revoked in retaliation for EEO activity was based on the manager’s motivation and did not address whether the agency actually decided to revoke the clearance or analyze the substance of any information that was part of the decision to grant or revoke the clearance). In other words, the Commission exercises jurisdiction where neither the complaint nor the decision addresses the security clearance determination itself. Id. Here, Complainant challenges the Agency’s decision to re-review her security clearance rather than apply reciprocity. The Commission has long held that an agency’s decision to initiate a review of a security clearance is not the result of any substantive decision-making process. Chatlin v. Dep't of the Navy, EEOC Request No. 05900188 (Jun. 1, 1990). 2022000548 6 Likewise, we have found that an agency’s decision on whether to apply reciprocity with respect to clearances is a procedural matter, unrelated to the substance of the clearance decision. Michell B. v. National Security Agency, EEOC Appeal No. 0120172545 (Jan. 5, 2018) (complainant stated a claim within EEOC jurisdiction when she alleged that the agency denied a staffing firm’s request for “crossover” clearances (i.e. 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). This extends to reciprocity for processes related to obtaining clearance. The complainant in Elias R. v. Department of Homeland Security, stated a claim when he alleged that a withdrawn employment offer based on a failed polygraph exam taken in conjunction with security clearance processing was discriminatory because, among other things, he was not granted reciprocity for his prior polygraph exam, which he had passed, while similarly situated employees were granted reciprocity. EEOC Appeal No. 2019000772 (Feb. 15, 2019). In determining that it had jurisdiction, the Commission reasoned: “While the polygraph might be reviewed while making a clearance decision, it was not the security clearance determination itself.” Complainant’s allegations that the Agency was motivated by discriminatory and retaliatory animus when it did not apply reciprocity, and instead conducted a suitability determination in a discriminatory manner resulting in delayed and ultimately denied employment fall within EEOC jurisdiction. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s Final Order adopting the AJ’s decision to dismiss Complainant’s complaint without a hearing. The matter is hereby REMANDED for further processing in accordance with this decision and the following Order. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC Philadelphia District Office5 a request on Complainant’s behalf for a hearing, along with a copy of this decision, and uploading the complete complaint file. The Agency shall provide written notification to the Compliance Officer at the address provided below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the EEOC Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 5 If Complainant still disputes the location of the venue, she may file a motion with the assigned AJ to transfer her complaint to an EEOC District Office closer to her residence. 2022000548 7 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022000548 8 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 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. 2022000548 9 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 April 18, 2022 Date