0120180660
05-10-2018
Sherman H,1 Complainant, v. Kristine L. Svinicki, Chairman, Nuclear Regulatory Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherman H,1
Complainant,
v.
Kristine L. Svinicki,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120180660
Agency No. NRC 17-15
DECISION
On December 8, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 6, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Information Technology (IT) Specialist, GG-12 in Region III, Director Resource Management and Administration, TIRB in Chicago, Illinois.
On May 9, 2017, Complainant filed an equal employment opportunity (EEO) complaint which the Agency defined as alleging he was discriminated against based on his race (Black), sex (male), disability (Diabetes), and reprisal for prior protected EEO activity under Title VII [and the Rehabilitation Act] when:
1. On August 25, 2016, management gave him two additional assignments - updating Region III's phone listing and updating and creating and printing Region III's wallet/phone cards, despite his informing the assigners that this was inappropriate work for him to do and would cause high stress which would increase his blood sugar, aggravating his diabetes.2
2. On December 5, 2016, he was issued a Counseling Memorandum accusing him of unacceptable conduct and insubordination for refusing to perform the two tasks referenced in Claim 1 above.
3. On February 3, 2017, the Agency's Office of Administration issued a letter dated January 30, 2017, notifying him that his security and employment clearance were suspended effective immediately.
4. On February 3, 2017, the Agency's Office of Administration, Division of Facilities and Security, Personnel Security Branch issued a letter dated January 30, 2017, notifying him of his proposed indefinite employment suspension (since the above clearances are required to perform his duties), and on March 16, 2017, the Division of Facilities and Security issued a letter dated March 16, 2017, notifying him of its decision to sustain the indefinite suspension.
The Agency dismissed claim allegations 1 and 2 for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate counseling until February 27, 2017, beyond the 45- day calendar day time limit. The Agency dismissed allegations 3 and 4 for failure to state a claim. It reasoned, in relevant part, that the Commission does not have jurisdiction to review the validity of the requirement of a security clearance and the substance of a security clearance determination. The instant appeal followed.
On allegations 1 and 2, Complainant argues that time-barred discriminatory incidents may be considered as background evidence in support of timely claims, and there is no time limit on relevant evidence. On allegations 3 and 4, Complainant explicitly does not challenge the validity of the Agency's national security requirements. He argues that the correct definition of allegations 3 and 4 is that the Agency discriminated against him in how the procedural requirements were followed in making a security clearance determination, which is reviewable by the Commission. Complainant contends that he is not challenging the substance of a security clearance decision to revoke his clearance - the Agency's decision to revoke his clearance has not been made - rather, the Agency has not applied the procedural requirements to the majority white males and females.
In opposition to Complainant's appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
Complainant initiated EEO counseling on February 27, 2017, more than 45 calendar days after the date he was given the two assignments on August 25, 2016. Complainant rejected the assignments because he believed they would aggravate his disability of diabetes. This is a reasonable accommodation claim. An employer has an ongoing obligation to provide reasonable accommodation, and failure to do so constitutes a violation each time the employee needs it. Because each occurrence is a discrete discriminatory act, however, relief usually will be limited to occurrences within the filing period. A timely charge also may challenge incidents that occur after the charge is filed. EEOC Compliance Manual, Section 2: Threshold Issues, 2-IV.C.1. a., pages 2-73, 2-74 (May 12, 2000, revised on July 21, 2005, available at www.eeoc.gov). The Agency did not rescind the two assignments, as evidenced by it giving Complainant a Counseling Memorandum on December 5, 2016, partly or wholly because he continued to refuse to perform the two assignments. Accordingly, allegation 1 is actionable commencing on October 9, 2016.
The EEO counselor wrote that she asked Complainant why he waited more than 45 days to initiate EEO counseling, and Complainant responded that when he was singled out, he believed that the work assignments alone were not enough to make out a disability claim. This is not adequate justification for tolling the time limit to initiate EEO counseling on allegation 2, which is a discrete claim. Accordingly, the Agency's dismissal of allegation 2 as an actionable claim is affirmed. We agree with Complainant that there is no time limit on relevant evidence.
Based on a fair reading of Complainant's complaint, we find that the Agency accurately defined allegations 3 and 4. The Agency's determination to indefinitely suspend Complainant's security clearance amounts to a revocation thereof, albeit subject to further consideration. Complainant contended in his complaint that the "cat's paw" theory applied to his case, which he wrote occurs when a decision maker is influenced by an employee with discriminatory intent. He continued that his management and a Regional Attorney provided false and misleading information which influenced the Personnel Security Branch and/or the Office of Administration.3 This is consistent with the Agency's definition of allegations 3 and 4 - the Office of Administration's decision to indefinitely suspend Complainant's security clearance and concomitantly, his employment. Further, while Complainant argues that the Agency has not applied the security clearance procedural requirements to the white male and female majority, he does not specifically identify what procedural standard or practice is different.
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); 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.
Complainant does not challenge that retaining a security clearance is a condition of his employment, or that others who have indefinitely lost their clearances have been permitted to continue working in their positions or been reassigned.
Applying the facts to the above law, we find that allegations 3 and 4 fail to state a claim.
The FAD is MODIFIED.
ORDER
The Agency is ordered to process allegation 1 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
May 10, 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.
2 Complainant was also given a third new assignment. The EEO counselor wrote that Complainant relayed that he agreed to temporarily perform the third assignment because he knew no one else in the region could perform that task, even though he was taking a health risk.
3 Once statements gathered during the investigation are included in the security clearance investigative report, the statements are "squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction." Schroeder v. Department of Defense, EEOC Request No. 05930248 (April 14, 1994).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180660
6
0120180660