Rich P.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

2019000745 (E.E.O.C. Feb. 5, 2019)

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.
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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.
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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).

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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).

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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