Zetta B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171714 (E.E.O.C. Nov. 20, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Zetta B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120171714

Agency No. DOS030916

DECISION

On April 15, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 16, 2017, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
as an Information Assistant (Social Media), FSN-09 at the Agency’s U.S. Consulate General in
Dubai, United Arab Emirates.

On July 11, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), national origin (African-
American/Sudanese), and religion (progressive Muslim with multi-faith family) when: 1) on May
25, 2016, her conditional offer for a position with the U.S. Consulate General in Dubai was
rescinded; and 2) as recently as May 2016, she was subjected to a hostile work environment during
the security clearance process, characterized by, but not limited to, inaccurate statements and
inappropriate and intimidating comments.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her 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).

On March 16, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency explained that it rescinded Complainant’s conditional offer of employment because
several discrepancies, anomalies, and issues arose during the security certification process,
including, but not limited to, confusion as to what type of position/clearance/certification she was
being interviewed for, her lack of candor regarding her loans (including amount of debt and due
dates), as well as her statements indicating a lack of importance to give accurate and factual
testimony. The Agency also rejected Complainant’s allegation that she was subjected to
harassment during the security certification process because the conduct at issue was routine in
nature and not attributable to her protected characteristics. The Agency concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

On appeal, Complainant alleges that during the security certification process, the Foreign Service
National Investigator and Assistant Regional Security Officer made negative remarks about her
family, religion, marriage, and citizenship. She contends that these remarks suggest the Agency
used national security as pretext for its discriminatory actions.

In response, the Agency contends that the Commission should reject Complainant’s appeal
because she failed to adequately explain the various problems that arose during the investigative
process.

As a preliminary matter, we consider whether the Commission has jurisdiction over this appeal.
The Commission will not review an agency's determination with regard to the substance of a
security clearance decision. See Policy Guidance on the Use of the National Security Exception
Contained in § 703 (g) 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, 528-529 (1988). The Commission
has previously held that 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.”
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Schroeder v. Dep't of Defense. EEOC Request No. 05930248 (April 14, 1994); Complainant v.
Dep't of Defense (National Geospatial Intelligence Agency), EEOC Appeal No. 0120122688 (Jan.
16, 2014). However, the bar of jurisdiction created by Egan and the national security exception to
Title VII is not absolute. In Rattigan v. Holder, the D.C. Circuit held that Egan does not “insulate
from Title VII all decisions that might bear upon an employee's eligibility to access classified
information. Rather, the Court in Egan emphasized that the decision to grant or deny security
clearance requires a “[p]redictive judgment' that ‘must be made by those with the necessary
expertise in protecting classified information.”’ 689 F.3d 764, 767 (D.C. Cir. 2012).

The Commission retains authority to review whether the grant, denial, or revocation of a security
clearance was carried out in a discriminatory manner. See Fonda-Wall v. Dep't of Justice, EEOC
Appeal No. 0720060035 (July 28, 2009); Schroeder v. Dep't of Defense (Defense Mapping
Agency), EEOC Request No. 05930248 (April 14, 1994). In Dodson v. Dep't of Defense, the
Commission found discrimination where a manager sought to have an employee's clearance
revoked in retaliation for filing EEO complaints. EEOC Appeal No. 01954101 (June 13. 1997).
The Commission did not address whether the agency actually decided to revoke the clearance, nor
did it analyze the substance of any information that was part of the decision to grant or revoke the
clearance. Id. The decision addressed the manager's motivation for seeking to have the employee's
clearance removed. Id. Further, in Chatlin v. Dep't of the Navy, the Commission found that an
agency's decision to initiate a review of a security clearance was not the result of any substantive
decision making process, and was thus reviewable by the Commission. EEOC Request No.
05900188 (June 1, 1990).

Even assuming arguendo that the security certification constitutes a security clearance decision,
we find that this case presents a situation that is squarely within the Commission's authority. See
Stacie P. v. Central Intelligence Agency, EEOC Appeal No. 0120162226 (March 7, 2017). In this
regard, we note that Complainant has not challenged the Agency's judgment as to whether she
should have access to sensitive information. See Henry S. v. Department of Defense, EEOC
Appeal No. 0720170020 (Mar. 28, 2018). Rather, she alleges that the Foreign Service National
Investigator and Assistant Regional Security Officer acted with discriminatory motive in denying
her security certificate and subjecting her to a hostile work environment. Accordingly, the
Commission has jurisdiction to review Complainant’s appeal.

To prevail on claim of disparate treatment discrimination, Complainant must satisfy a three-part
evidentiary scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s
Honor Center v. Hicks, 509 U.S. 502 (1993).
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Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

The record reflects that the Agency articulated legitimate, nondiscriminatory reasons for
rescinding her conditional offer of employment conditional offer at the U.S. Consulate General in
Dubai. In the final decision, the Agency explained that it rescinded Complainant’s conditional
offer of employment because several discrepancies, anomalies, and issues arose during the security
certification process, including, but not limited to, confusion as to what type of
position/clearance/certification she was being interviewed for, her lack of candor regarding her
loans (including amount of debt and due dates), as well as her statements indicating a lack of
importance to give accurate and factual testimony.

Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reasons for
rescinding her conditional of employment were pretexts for discrimination. In so finding, we note
that her offer of employment at the U.S. Consulate General was conditional in nature and
contingent upon the receipt of security certificate. We agree with the Agency that she failed to
adequately address the various discrepancies and inconsistencies that arose during the security
certification process. Consequently, Complainant failed to rebut the Agency’s articulated
legitimate, nondiscriminatory reasons.

With regard to Complainant’s allegations of harassment, we will assume arguendo that the events
occurred as Complainant described and were unwanted. Nevertheless, we agree with the Agency
that the actions of the Foreign Service National Investigator and Assistant Regional Security
Officer were relevant to the security certification process and routine in nature.2 We note that Title
VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75,
81 (1998). Complainant has failed to show that the conduct at issue affected a term or condition
of employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

2 It appears that Complainant may have misunderstood the inquiries that were posed to her. For
example, Complainant asserts on appeal that the inquiry regarding her multiple marriages was
discriminatory. However, as indicated in the investigative file, the Agency was only interested in
the number of legally binding marriages (i.e., marriages recognized by local civil authorities)
because multiple legal marriages in different jurisdictions may be indicative of fraud. The reasons
for Complainant’s multiple religious marriage ceremonies (including her multi-faith background)
were not factors in the denial of her security certificate.
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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.
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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

November 20, 2018
Date