Rich P.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.Download PDFEqual Employment Opportunity CommissionFeb 5, 20192019000745 (E.E.O.C. Feb. 5, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rich P.,1 Complainant, v. Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2019000745 Agency No. FBI-2018-00292 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 18, 2018, dismissing his complaint of 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Senior Intelligence Officer (SIO) at the Agency’s Directorate of Intelligence, Federal Bureau of Investigations (FBI) facility in Washington, D.C. In September 2013, Complainant took a Personnel Security Polygraph examination which indicated deception and the use of countermeasures. A follow-up investigation, including another polygraph examination, resulted in the revocation of Complainant’s security clearance in February 2015. In August 2016, the Agency affirmed the decision on reconsideration. Complainant appealed the decision to the Access Review Committee (ARC). 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. 2019000745 2 In January 2018, ARC considered Complainant’s appeal of his clearance revocation and determined that the record needed further development. The ARC directed the FBI to conduct an additional polygraph examination. On April 26, 2018, Complainant was given a polygraph retest. The results did not indicate the use of countermeasures, but deception was indicated on relevant questions. Subsequently, on May 30, 2018, ARC affirmed the revocation of Complainant’s Top Secret security clearance. Believing that his treatment during the April 26, 2018 polygraph examination and the subsequent removal of his security clearance were discriminatory, Complainant contacted an EEO Counselor on June 14, 2018. Informal efforts to resolve Complainant’s concerns were unsuccessful. On July 17, 2018, Complainant filed a formal complaint based on race (Asian), disability, and in reprisal for prior protected EEO activity. The Agency framed the claims as follows: 1. On April 26, 2018, Complainant was not accommodated during his polygraph re-examination, and the examiner made remarks about Complainant’s Chinese ethnicity; and, 2. On June 1, 2018, Complainant was notified that the revocation of his Top- Secret security clearance was affirmed. In its October 18, 2018 final decision, the Agency dismissed the formal complaint. The Agency dismissed claim (1) for untimely EEO Counselor contact. According to the Agency, the allegedly discriminatory event occurred on April 26, 2018. The Agency therefore determined that Complainant’s contact forty-nine days later, on June 14, 2018, was beyond the time limit. While Complainant contended that he became aware of the discrimination on May 30, 2018, the Agency reasoned that Complainant reasonably suspected discrimination on the day the polygraph examination occurred: April 26, 2018. The Agency dismissed claim (2) for failure to state a claim. The Agency reasoned that security clearance determinations are beyond the EEOC’s jurisdiction. Complainant filed the instant appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 2019000745 3 The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. In the instant case, Complainant argues, with respect to the timeliness of his EEO Counselor contact, that the determination to permanently revoke his Top-Secret security clearance, what he states is “the adverse personnel action” at issue, occurred on May 30, 2018. By using the date of the final clearance decision, Complainant’s June 14, 2018 EEO Counselor contact is within the forty-five-day time limit. Yet, Complainant also contends that he is not challenging the decision to revoke his security clearance, but rather he is challenging the conduct of the polygrapher and others in the polygraph unit. According to Complainant, the “security clearance grantors conducted their jobs bias-free but relied on bad, biased information to make their decision.” This subsequent argument, however, undercuts Complainant’s assertion that the relevant date of the allegedly discriminatory action is when the final decision to revoke his clearance was made, rather than the date the polygraph re-take was performed. Complainant’s claim that the affirmed revocation of his security clearance (claim (2)) was discriminatory is outside the Commission’s jurisdiction. 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. As for his claim that the April 26, 2018 polygraph examination itself was discriminatorily administered or evaluated, such event occurred on that date and did not occur one month later when the final decision was made on his clearance. Moreover, the record reflects that Complainant himself suspected discrimination on April 26, 2018.2 Therefore, his June 14, 2018 counselor contact was beyond the forty-five-day time limit. Finally, we note that even if we accepted Complainant’s argument that polygraph examiner’s actions resulted in the denial of his clearance, once such information are included in the security clearance investigative report, such statements are “squarely within the rubric of a security clearance determination and beyond the 2 When asked by the EEO Counselor why his contact was more than forty-five days after the polygraph re-take, Complainant explained that he first raised his concerns with the ARC. He hoped that the ARC would resolve the matter before turning to the EEO process. The Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991): Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000). 2019000745 4 Commission’s jurisdiction.” Complainant v. Dep’t of Justice (Federal Bureau of Investigations), EEOC Appeal No. 0120172253 (Nov. 6, 2018) citing Branigan v. Department of Defense, EEOC Appeal No. 01973495 (Jan. 9, 1988). CONCLUSION The Agency’s final decision to dismiss the formal complaint is AFFIRMED for the reasons discussed above. 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). 2019000745 5 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 February 5, 2019 Date Copy with citationCopy as parenthetical citation