U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Waneta F.,1 Complainant, v. Peter T. Gaynor, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2019005452 Agency No. HS-FEMA-24679-2015 DECISION On June 29, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated June 14, 2019, concerning her equal employment opportunity (EEO) complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as the Director of Records Management, GS-0343-15, at the Office of Chief Administrative Officer - in Crystal City, Virginia, up to around May 2014, and thereafter in Washington, D.C. Complainant resigned from this position to take a job at the U.S. Treasury, where he started on June 15, 2015, On October 3, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on her race/Color (African-American/Black), sex (female), and reprisal for prior protected EEO activity under Title VII when: 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. 2019005452 2 1. Before her first investigative interview by the Internal Investigative Branch (part of the Office of Chief Security Officer) on February 26, 2014, it refused to inform her in advance of the topic so she could prepare, and at her second interview on June 18, 2014, it denied her permission to use the laptop she brought to answer questions, was hostile, and repeatedly called her a liar. 2. On February 11, 2015, the Director (African American/Black/female) of the Personnel Security Division (part of the Office of the Chief Security Officer) suspended her clearance (with the right to respond) pending the Division making a final determination. 3. After being placed on administrative leave on February 11, 2015, she was issued a notice dated March 6, 2015, of proposed indefinite suspension from duty by her first line supervisor (S1 - male). 4. By notice dated April 29, 2015, she was issued an indefinite suspension without pay effective May 1, 2015, by her second line supervisor (S2 - female) which resulted in her constructive discharge around May 2015. 5. She learned on July 16, 2015, that because her Agency clearance was still in suspension status, her new employer denied her access to classified information.2 6. On August 7, 2015, she learned that the Personnel Security Division ceased processing whether to restore her clearance. 7. On August 20, 2015, the above Director of the Personnel Security Division issued a decision revoking her security clearance. 8. On September 15, 2015, the above Director rescinded this decision and returned her to suspension status. Following an EEO investigation, the Agency provided Complainant a report of investigation (ROI) accompanied by the right to request a hearing before an EEOC Administrative Judge. Either because she did not request a hearing, or she requested a FAD without a hearing, the Agency issued a final decision finding no discrimination was established based on the evidence developed during the investigation. The instant appeal followed. 2 The Agency dismissed this allegation for failure to state a claim because it has no control over what Complainant’s new employer did. We interpret this allegation differently - it concerns the Agency’s delay in determining whether to restore her clearance. 2019005452 3 On appeal, Complainant argues that the EEO investigation was inadequate, and she was subjected to discriminatory disparate treatment and harassment.3 The Agency argues that the Commission lacks jurisdiction over Complainant’s entire complaint because it concerns the substance of the Agency’s security clearance decision and matters inextricably tied to this, and in the alternative that Complainant did not prove discrimination. 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).4 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. Security Clearance Determinations: Allegations 2 and 7 Applying our Guidance and Egan, we find that issues 2 and 7 fail to state a claim because they regard the substance of the Agency’s security clearance determinations. The topic of Complainant’s interviews on February 26 and June 18, 2014, by the Internal Investigation Branch were her role in the alleged improper preferential hiring in December 2012, of her subordinate Management Program Analyst. The hiree was the son of Complainant’s coworker, a Division Director (Comparison 1 - Black male). After Complainant’s two interviews, the Internal Investigation Branch conducted another investigation on her alleged lack of candor during them. The investigators found she made materially false statements, including: • In the second interview saying she did not know Comparison 1’s son applied before the vacancy announcement was issued but was actually provided his resume 12 days before by S1’s Executive Officer (Comparison 2 - Black female). • In the first investigative interview saying her Subordinate Branch Chief 1 made the decision to hire the son and in the second one saying her Subordinate Branch Chiefs 1 and 2 made the hiring decision before conceding there that they were not involved and she alone made the hiring decision. 3 The Agency correctly argues that the brief was untimely filed. We exercise our discretion to consider the brief. 4 In the FAD, the Agency cited to the law in Egan, but did not apply it. 2019005452 4 • Saying in the second investigative interview that after the son was onboard she never prevented him from being disciplined or covered up for him in any way when actually after he was reprimanded in writing by Successor Subordinate Branch Chief 1 and caught a week later watching movies/videos at his desk,5 Complainant did not act on a proposed five day suspension prepared by Labor & Employee Relations, saying at the second investigative interview that the son told her he was only listened to music using one earbud, and when confronted then with the son’s admission to watching, retorted he must have lied to her. • The investigators found that throughout the investigation Complainant provided evasive answers and lacked candor. • The investigators found Complainant provided preferential treatment to the son who had no Freedom of Information Act (FOIA) or records management experience, conducted a selection process that differed from normal procedures, selected him over 145 other qualified candidates, and colluded with Comparisons 1 and 2 to hire the son. Complainant indicated that Comparison 1 reported to S1. Harassment Claim: Allegation 1 Harassment is actionable only if the incidents to which Complainant has been subjected were “sufficiently severe or pervasive to alter the conditions of Complainant’s employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). To establish a prima facie case of harassment, Complainant must show that (1) she is a member of a statutorily protected class and/or was engaged in prior EEO activity; (2) she was subjected to unwelcome verbal or physical conduct related to her membership in that class and/or her prior EEO activity; (3) the harassment complained of was based on her membership in that class and/or her prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. To the extent Complainant alleges that the Agency relied on incorrect findings by the Internal Investigation Branch to suspend and revoke her clearance, the EEOC lacks jurisdiction since that regards the substance of the Agency’s security clearance decision. The Director of the Personnel Security Division suspended and then revoked Complainant’s security clearance based on the findings of the Internal Investigation Branch. We derived the above description of its findings from the letter revoking Complainant’s clearance. 5 The investigators recounted that Successor Subordinate Branch Chief 1 stated she recommended terminating the son after the watching TV/Video incident, and Complainant told her to “let things go†and “be careful in pushing matters.†2019005452 5 But the Commission has jurisdiction over the method of the Internal Investigative Branch’s investigation. It was not a security clearance investigation. But even if it was, allegation 1 concerns investigative methods, not the Agency’s substantive determinations on her clearance. Kingan v. National Security Agency, EEOC Appeal No. 01996328 (Feb. 15, 2002) (if an Agency required all males, but not females to take polygraph examinations to obtain a security clearance, the Commission would have jurisdiction over whether requiring the polygraph was discriminatory). Allegation 1 is a harassment claim. Complainant has not shown this claim rises to the level of actionable harassment. Not giving Complainant notice before the first interview of its topic does not appear to be a suspect investigative technique, but rather standard procedure to deny a witness/subject an opportunity to coordinate their answers with others or rehearse answers. This, as well as not permitting Complainant to access her laptop during the second interview are not harassing in nature. Further, while Complainant stated she was repeatedly called a liar in the second investigation this could refer her attention being drawn to her inconsistencies.6 Disparate Treatment: Allegations 3, 4, 5, 6 and 8 To prevail on her individually actionable claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with for this claim, however, since the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation was a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Allegations 3 and 4 These allegations regard S1’s proposal to indefinitely suspend Complainant from duty on March 6, 2015, and S2’s decision to do so without pay out pay effective May 1, 2015, which resulted in her constructive discharge in May or early June 2015. In her EEO complaint Complainant wrote that she got less than three months of paid administrative leave after she was placed off-duty, far less than Comparison 1. On appeal, Complainant wrote she just learned that after being put off duty Comparison 1 got 14 months of paid administrative leave while his investigation was underway, his clearance was never suspended or revoked, and he was allowed to resign. 6 A witness stated that Complainant told her that at the first interview the Internal Investigative Branch kept “inferring that she was lyingâ€, and Complainant reported similar treatment at the second interview. ROI, F-8, at 3, Bates No. 193. 2019005452 6 The record reflects that Comparison 2’s clearance was suspended but then restored by the Personnel Security Division. Complainant contended Comparison 2’s clearance was suspended around April or May 2015, and after it was restored she returned to work on February 1, 2016. In her report, the EEO counselor relayed that S1 said Complainant and Comparisons 1 and 2 all were investigated regarding the same matter (hiring incident), all were put off duty with paid administrative leave, and then suspended without pay. The Director of the Employee Services Division in human resources stated that generally after an employee’s security clearance is suspended they are immediately placed on administrative leave while human resources works with management to place the employee on indefinite suspension without pay while awaiting a final decision on the clearance matter. In the decision letter by S2 indefinitely suspending Complainant from duty without pay, S2 represented that the sole reason therefore was that her security clearance was suspended on February 11, 2015, and her duties required an active one. In the letter, S2 represented that while she considered reassigning Complainant to another position, she decided not to do so, and determined that allowing her to remain in an administrative leave status would not promote the efficiency of the service. The Agency articulated a legitimate, nondiscriminatory reason for proposing Complainant’s indefinite suspension from duty, and indefinitely suspending her without pay - since her clearance was indefinitely suspended, she could not perform her duties. This is consistent with general statement by the Director of the Employee Services Division in human resources about what generally occurs. We disagree with Complainant’s contention that she was disparately treated because she was not returned to work, but Comparison 2 was returned. Unlike Complainant, Comparison 2’s security clearance was restored - the reason for her return. And the Commission has no jurisdiction over the substance of the Agency’s security clearance determinations. Complainant represents on appeal that Comparison 1’s clearance was never suspended or revoked. Accepting this at face value, we find she is not similarly situated to Comparison 1. Because Complainant has not shown she was not discriminated against regarding her administrative leave being cut-off, we find that she was not constructively discharged. On appeal, Complainant contends that the EEO investigation was insufficient because it does not contain investigatory statements by S1 and S2. The contract EEO investigator wrote that she contacted S1 who stated he would not discuss such a sensitive matter over the telephone without proof of authorization from the Agency to investigate the matter. The contract EEO investigator did not further contact with S1, nor indicate if she contacted the Agency EEO office to provide S1 the proof. The contract investigator wrote that she was informed that S2 retired and attempted to contact her on two separate dates without success. 2019005452 7 While statements by S1 and S2 would have been relevant, given all the facts recounted in this decision, we find that the EEO investigation was adequate. Allegations 5, 6 & 8 Allegations 5 and 6 concern the Agency delaying making a final determination on whether to restore Complainant’s clearance and then stopping this processing. The Commission has jurisdiction over these matters because they do not regard the substance of Agency’s determination on Complainant’s clearance. Complainant has not shown that the person largely or completely responsible for the delay, the Director of the Agency’s Personnel Security Division, a Black female, had a discriminatory motive in causing the delay. The final determination on Complainant’s clearance, after it was suspended, took about 6½ months, which was months less than it took for Comparison 2. Also, the Director stated that she was not aware of Complainant’s prior EEO activity. The Agency’s policy is to stop processing of a security clearance determination if an employee is no longer employed thereby. We find this was the reason the Agency ceased processing its final determination on Complainant’s clearance. The record shows this is the same reason the Agency rescinded its decision to revoke Complainant’s clearance and return her to suspension status. When the Director issued the revocation decision on August 20, 2015, she was not aware that Complainant had separated from the Agency in May or early June 2015. After learning this the Director returned the processing of the security clearance to the point it was at before Complainant separated. The Director relayed this to the EEO counselor, and it is consistent with Agency policy. CONCLUSION The FAD is AFFIRMED. 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. 2019005452 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 (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. 2019005452 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 January 22, 2021 Date
