U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Guadalupe H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF)), Agency. Appeal No. 2021001869 Agency No. ATF-2020-02123 DECISION On January 26, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a January 11, 2021 final Agency decision (FAD) dismissing his complaint alleging 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, the Agency had formally notified Complainant that it identified him as a leading candidate for hire to the position of Intelligence Research Specialist, GS-132-12, at its Houston Field Division in Houston, Texas. It notified Complainant that the job was subject to hiring restrictions and an offer would not be made until, among other things, the final adjudication of a background investigation. On October 1, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his disability (record of Axis I diagnosis of psychoactive substance abuse, opioid dependence, and substance abuse disorder) during the Agency’s personnel security process, which led to an August 25, 2020 decision not to hire him for a drug use policy violation. 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. 2021001869 2 The Agency dismissed the complaint for failure to state a claim because the Commission does not have jurisdiction to review the substance of an agency’s determination on a security clearance. The position Complainant sought requires a top-secret security clearance. The Agency found that ATF’s Personnel Security Division is charged with conducting a background investigation and determining whether a candidate is eligible and meets the requirements for a position, that Complainant acknowledged drug use, so he was notified that a non-select adjudication determination was made due to a violation of ATF’s Drug Use policy. The instant appeal followed. On appeal, Complainant argues that the Agency did not make a security clearance determination. He argues that the discrimination occurred in the application of ATF’s Drug Use policy - without relation to a security clearance decision. In reply to Complainant’s appeal, the Agency submits the ATF Order on personnel security. It states as follows. A “pre-employment screening” is conducted to determine if a candidate meets Agency Specific Qualifications (ASQs), such as the citizen requirement, required Selective Service registration, financial responsibilities (e.g., delinquent debts) and compliance with ATF’s Drug Policy, and a “Background Investigation” is conducted to make an “adjudicative determination” on whether the candidate may be eligible for a security clearance. The Department of Justice uses the Justice Security Tracking and Adjudication Record System (JSTARS) to maintain records relating to pre-employment screenings, background investigations, security clearances, and the like. If derogatory information is found during the pre-employment screening, ATF’s Personnel Security Division will take various actions, including termination of the personnel security process. The Agency argues that the Personnel Security Division terminated the personnel security process on Complainant after analyzing his pre-employment screening documentation because he did not meet ATF’s Drug Policy ASQ. ANALYSIS AND FINDINGS The Commission does not have jurisdiction to review an agency’s determination on the substance of a security clearance decision. EEOC’s 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, OLC Control Number EEOC-CVG-1989-17 (May 1, 1989) (Guidance); 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. See Guidance. In its FAD, the Agency relied on Cepero v. Justice (ATF), EEOC Appeal No. 01A04017 (June 24, 2002). In this case, after a tentative job offer, the agency determined the complainant was unsuitable for ATF employment because of drug use. While the agency did not make a determination on a security clearance, the Commission found Egan applied because getting to 2021001869 3 this determination was tied to the successful completion of the background check. It found that the steps involved in a tentative offer becoming a firm one were entwined. The same is true here. Because it is uncontested that having a security clearance was a condition of employment and Complainant does not allege others without clearances were hired, we also do not have jurisdiction over his connected non-hire. Pangarova v. Army, EEOC Petition No. 0319900028 (Mar. 29, 1990). The FAD is AFFIRMED.2 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. 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. 2 Complainant registered dissatisfaction with how the Agency processed his EEO case. The Agency addressed this separately from the FAD. This matter is dismissed under 29 C.F.R. § 1614.107(a)(8). 2021001869 4 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. 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 June 3, 2021 Date
