[Redacted], Kenneth M., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Apr 4, 2022

Appeal No. 2022000960 (E.E.O.C. Apr. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth M.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2022000960 Agency No. 21-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated November 3, 2021, 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. Upon review, the Commission finds that Complainant’s complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Accordingly, we AFFIRM the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency. His husband, C2, worked at the National Geospatial Agency (NGA). The record indicates that, pursuant to Agency policy, a remote spousal work accommodation allows the spouse of an Agency employee stationed overseas to work remotely from an Agency assigned workspace on behalf of another agency. Complainant and C2 requested this accommodation. On or about September 28, 2020, NGA advised C2 that it was endorsing his application to secure a spousal remote work accommodation with the Agency. As part of the processing, NGA requested that he complete certain paperwork, and he was scheduled for other matters, all of which he completed on or about October 13, 2020, at the NGA. In or around late-November or early-December 2020, NGA advised C2 that his completed packet was submitted to the Agency. 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. 2022000960 2 On December 7, 2020, Complainant and C2 arrived at the worksite where the spousal remote work accommodation was to occur, and Complainant was to work. On or about December 21, 2020, NGA notified C2 that the processing had been “cancelled,” thus denying his spousal remote work accommodation, and a position at the Agency facility. NGA indicated that it was the Agency, not NGA, who canceled the processing and that the Agency did not provide details for its action, but indicated that, “[b]ased on information provided, or that was otherwise obtained during the assignee processing, it was determined that we can no longer continue processing this assignee . . .” Complainant initiated the EEO process on January 15, 2021, alleging that he was denied a benefit and privilege of his employment based on his sex (male) and sexual orientation. On March 18, 2021, the Agency EEO counselor notified Complainant’s counsel that she closed the counseling period because “the Agency [denied] discrimination in the matter raised by [Complainant]” and “[t]he Office of Security state[d] that due to [policy] they [were] not able to process security clearances for non-mission critical work requirements.” On April 1, 2021, Complainant filed a formal complaint, alleging that he was discriminated against based on sex (male) and sexual orientation when, on or about December 21, 2020, the Agency denied his spouse’s spousal remote work accommodation and a National Geospatial Intelligence Agency assignee status because the Office of Security cancelled C2’s security vetting process. The Agency, in its final decision dismissing Complainant’s complaint on the grounds that it failed to state a claim, noted that an initial review of C2’s SF-86 form2 led to a determination that additional security vetting would be required, and that, as a matter of policy, it does not extend additional vetting or processing for “Assignee-Detailee” candidates. The Agency reasoned that it was not possible to review the denial of C2’s spousal work accommodation and assignee status without also reviewing the cancellation of his security vetting process; therefore, the Agency found that the complaint failed to state a claim and was subject to dismissal. On appeal, Complainant, through his attorney, argued that the cancellation of C2’s status was not made pursuant to a security determination but was based on the prioritization of resources; thereby, denying him a benefit and privilege of his employment. Even if a security determination was implicated, Complainant argued that the Commission was not precluded from determining whether the grant, denial or revocation of a security clearance was conducted in a nondiscriminatory manner. Thus, Complainant maintains that the Agency prematurely stopped the security process for reasons that did not concern the substance of C2’s security forms, but the Agency’s willingness to review them further. 2 A security background form. 2022000960 3 ANALYSIS AND FINDINGS The Commission has consistently affirmed the dismissal of complainants’ claims alleging that they were subjected to discrimination due to their security clearance being revoked or denied, finding that such claims fail to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), and are outside the purview of the Commission’s jurisdiction. The Commission has held that the complaint fails to state a claim under EEOC regulations because the Commission is precluded from reviewing the validity of the requirement of a security clearance and the substance of a security clearance determination. See, e.g., Rezaee v. Department of the Air Force, EEOC Appeal No. 01A60451 (April 25, 2006) (citing Policy Guidance on the Use of National Security Exception Contained in § 703(g) of Title VII of the Civil Rights Act of 1964, as amended (EEOC National Security Guidance), EEOC Notice No. N-915-041 (May 1, 1989)); Carr v. Dep’t of the Army, EEOC Appeal No. 01A44011 (November 4, 2004) (citing EEOC National Security Guidance). Thierjung v. Dep’t of Defense (Defense Mapping Agency), EEOC Request No. 05880664 (November 2, 1989). However, as noted by the parties, the Commission does retain the authority to review whether the grant, denial, or revocation of a security clearance was carried out in a discriminatory manner. Id.; Schroeder v. Dep’t of Defense (Defense Mapping Agency), EEOC Request No. 05930248 (April 14, 1994). Notwithstanding the arguments raised by Complainant on appeal, we find that the Commission is precluded from addressing this matter because it involves reviewing the substance of a security clearance determination. The Agency decided that, after an initial review of C2’s SF-86 form, that additional security vetting would be required, and that, as a matter of policy, it did not extend additional security vetting or processing for “Assignee-Detailee” candidates. Like the Agency, we find that the decision to halt the security vetting process here was a security clearance determination over which we do not have jurisdiction. Moreover, although the Commission does have the authority to review whether the security clearance determination was carried out in a discriminatory manner, we find no persuasive evidence supporting such an assertion here. Complainant argued that there were comparator employees who were provided the exact benefits denied him, i.e., their spouses were accommodated. However, as indicated by the Agency, the mere fact that some individuals cleared the process, while C2 did not, does not indicate discrimination. Also, Complainant does not allege, nor does the record establish that any of the spouses of the comparators he cited required additional security vetting or processing, he merely speculates that these individuals were treated differently than C2 because of their sex and sexual orientation.3 3 Unlike the example set forth in numerous Commission decisions of a complainant alleging that, pursuant to a security clearance review, an agency requires all female applicants to take a polygraph examination, but not male applicants, Complainant maintained that he was denied a benefit that a heterosexual coworker received. There is, however, no indication that the spouse of his coworker required additional security vetting or processing like C2. Such evidence would raise the issue of whether the security clearance determination was carried out in a discriminatory manner, which we would be authorized to review. 2022000960 4 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 4 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. 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. 4 Because of our decision above that this matter involves a security clearance determination, we do not find it necessary to address whether Complainant was an aggrieved party with respect to his contention that he was denied a privilege or benefit of his employment. 2022000960 5 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. 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 4, 2022 Date