0120162194
04-30-2018
Rolf R.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rolf R.,1
Complainant,
v.
Rex W. Tillerson,
Secretary,
Department of State,
Agency.
Appeal No. 0120162194
Agency No. DOS-0389-15
DECISION
On June 20, 2016, 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 May 26, 2016, concerning his 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 worked as a Language Testing Specialist, GG-11 at the Agency's Foreign Service Institute, School of Language Studies in Arlington, Virginia.
On October 26, 2015, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on religion (Islam) when his security clearance investigation was delayed and conducted in a biased manner.
Following an investigation, the Agency notified Complainant of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
In May 2014, Complainant was selected by the Agency for promotion to the position of Instructional Systems Specialist, GG-12, at the Foreign Service Institute, contingent on obtaining a security clearance at the secret level. The standard operating procedure of the Foreign Service Institute, School of Language Studies is to begin the process of withdrawing the job offer if the security clearance has not been obtained within 15 months.
On May 9, 2014, Complainant submitted his security clearance package for consideration by the Agency's Diplomatic Security Bureau, Office of Personnel Security and Suitability. In January 2015, Complainant emailed the Office of Personnel Security and Suitability asking for status, and in February 2015, and periodically thereafter emailed the same office communicating that his job offer was conditioned on his obtaining a security clearance, and in the absence of a determination thereon his job offer would be withdrawn around August 2015. On or about August 27, 2015, while the application for his clearance was still pending, the Foreign Service Institute withdrew his contingent promotion offer. The Office of Personnel Security and Suitability then terminated processing the application for Complainant's clearance. The Director of the Office of Personnel Security and Suitability (no religion) stated that if a job offer is withdrawn, the individual no longer has a need to access classified information at the secret level. He cited to Executive Order 12968 � 2.2(a), which requires that the level of access to classified information is granted shall be limited and relate directly to the level of classified information for which there is a need for access.
The Director stated as follows. The delay in processing the application for Complainant's security clearance was caused by derogatory information on him from more than one person that required "review and mitigation." This information created potential issues that implicated the Government-wide Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, Factor B: Foreign Influence (born in a foreign country, held a foreign passport, has close relatives who are citizens of a foreign country, etc.) and Factor E: Personal Conduct. Due to the Privacy Act, the Director cannot provide further information on the persons who gave derogatory information because they requested confidentiality.
He continued as follows. They are required to fully investigate and adjudicate all derogatory information obtained in the investigation. Per the referenced Adjudicative Guidelines, "Any Doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security." Complainant's initial investigation was managed by a case manager (Level 1) who tasked an investigator to gather information regarding the Complainant and provide a report of investigation. If there are no or only limited issues implicating the Adjudicative Guidelines, the case manager can grant the security clearance. Here, the case manager determined that an adjudication could not be made due to issues implicating the Guidelines so the application was referred to Level 2 Adjudication for a more thorough review and attempt to see if the issues could be mitigated. Eventually Level 2 (the adjudicator and his team lead) determined that they could not make a final adjudicative decision on the application and referred it to Level 3 Adverse Action for the final determination to grant the clearance or recommend it be denied. While the Complainant's case was still in Adverse Action, his tentative job offer was withdrawn so the Level 3 adjudication ended without a recommendation.
In its FAD, the Agency found that Complainant failed to make out a prima facie case of discrimination because he did not show he was disparately treated. It found that assuming without finding that Complainant made out a prima facie case, the Director of the Office of Personnel Security and Suitability explained that the delay was caused by derogatory information on Complainant implicating the Adjudicative Guidelines. The Agency found that Complainant failed to prove this explanation was pretext to mask discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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 in this case, however, since the Agency has 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is 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); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
The Director explained that the delay in adjudicating Complainant's clearance was caused by the receipt of derogatory information from more than one person implicating the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information which required further review and mitigation, specifically on the factors on foreign influence and personal conduct.
Complainant contends that this explanation is pretext to mask discrimination based on his religion. He contends that a GG-11, who had the same first line supervisor as him, applied for the position of Testing Training Specialist, GG-12 (Comparison 1 - Catholic) and her clearance to the secret level was granted her clearance in less than two months. Also, according to Complainant, a language training instructor at the Foreign Service Institute (Comparison 2 - not Muslim) who had an application for a secret clearance around the same time as him, contacted Diplomatic Security three months before the expiration of her job offer and they called her back immediately, listened to her story, and granted her clearance about a week later. Complainant writes that despite his multiple pleas with Diplomatic Security, they never interviewed him to give him a chance to address their concerns.
The Director of the Office of Personnel Security and Suitability countered that Comparisons 1 and 2 were not treated more favorably. He explained that the duration of a clearance investigation is generally dependent on the background of the applicant and the number and seriousness of potential issues implicating the Adjudicative Guidelines, and investigations are typically completed more quickly when there are no or few issues implicating the Guidelines. He stated that he cannot go into more detail on Comparison 1 and 2's cases due to the Privacy Act. He added that per Executive Order 12968 � 3.1(c), they do not use religion as a factor for determining access to classified information. This section provides that the United States Government does not discriminate based on race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information.
The Director stated that in fiscal year 2015, there were 3899 applications for a secret clearance. Of these, roughly 162 applicants were referred to Level 3. He stated that their system does not collect timeline data for open cases - they are counted from when cases are closed. He stated that in reviewing their data for fiscal year 2015, at least 26 applications for Secret clearances took more than 400 days to complete, the longest being 785 days, not including Complainant's case. The Director stated that there were likely more applications that closed in fiscal year 2015 that took longer than 400 days, but a more accurate accounting was not possible without a laborious and time consuming hand search of thousands of paper files.
Complainant stated that he was born in the country Mauritania, it is 100% Muslim, his wife is a citizen thereof and she was in the process of applying for U.S. citizenship, and she planned to renounce her Mauritanian citizenship as soon as she becomes American. Complainant strongly vouched for his character, patriotism, tolerance and not being a threat, giving specific examples.
Complainant stated that he was contacted by a Federal Bureau of Investigation (FBI) agent who advised he was told by Diplomatic Security that an employee in Complainant's workplace said he had "extremist views." Complainant denies this, stating the accusation was damagingly slanderous. He submits an August 26, 2015 email to him by the FBI agent stating he appreciated speaking with him, the FBI considers the matter closed, he was never under an FBI investigation, and its interest was completely distinct and different from his pending employment related background investigation. Complainant viewed the email as exculpatory, forwarded it to the Office of Personnel Security and Suitability, and wonders why the email did nothing to move his case. The Director of the Office of Personnel Security and Suitability stated that he reviewed Complainant's file and did not see the referenced email.
Complainant stated that his first line supervisor was interviewed by Diplomatic Security, and she gave a glowing account of his character, professionalism and patriotism, but this was not considered in moving the clearance process along. According to Complainant, his first line supervisor relayed that in her interview she was asked questions which indicated someone reported he was too religious and talked about Islam in the workplace. He stated that he does not wear religion on his sleeve, but that he does work in a diplomatic training facility where they teach cultural awareness to diplomats, and he develops materials for testing and teaching that are culturally loaded to give the diplomats the tools they need to understand the countries they work in - this is part of his job. The Director of the Office of Personnel Security and Suitability stated the August 2015 interview of Complainant's first line supervisor was not conducted by Diplomatic Security, but a report thereof was part of the clearance investigative file that would have been considered if Complainant's case had gone to final adjudication. He added that during Complainant's clearance investigation and adjudications several sources provided favorable information about him, all information was reviewed at each level of the clearance process, and all information would have been included in the Level 3 final adjudicative determination to grant Complainant' s clearance or recommend denial, but his job offer was withdrawn before the final adjudicative decision was made.
On appeal, Complainant reiterated his contentions. He also argues that despite filing a Freedom of Information Act request, he was not permitted to review his security clearance file, and because Diplomatic Security did not specify the nature of the slander leveled at him nor its source, this makes it more difficult to refute their claim.
We find that the EEO investigation was sufficient to rule on Complainant's discrimination claim. Complainant strongly disputes the veracity of any derogatory information against him implicating the factors of foreign influence and personal conduct. The Director of the Office of Personnel Security and Suitability confirmed that several sources provided favorable information about Complainant, but the derogatory information needed to be addressed with further review and mitigation, which left the clearance process pending for a long duration. We note that the application for Complainant's clearance was reviewed at two levels, and in the process of being reviewed at the third. The Director explained that Comparisons 1 and 2 were not treated favorably, rather they did not have the same issues as Complainant.
Complainant failed to show that the Agency's explanation on how his clearance investigation was conducted and the long delay was pretext to mask discrimination, or otherwise prove discrimination.
Accordingly, the FAD is AFFIRMED.
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).
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
April 30, 2018
__________________
Date
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.
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