Ward B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120180397 (E.E.O.C. Sep. 30, 2019)

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

Ward B.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120180397

Hearing No. 510-2015-00236X

Agency No. DIA-2014-00052

DECISION

JURISDICTION

Complainant timely 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 September 25,
2017, final order concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission VACATES the Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the Administrative Judge properly issued a decision without a
hearing, finding that the Agency did not discriminate against Complainant based on disability
when it decided not to retain his services due to his inability to complete a Polygraph Credibility
Assessment, or when it reassigned him to the National Capital Region.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Intelligence
Analyst at the U.S. Special Operations Command (USSOCOM), Joint Intelligence Center
Special Operations Command in Tampa, Florida. Complainant entered on duty in this position in
2002. In 2006, the successful completion of a Polygraph Credibility Assessment (PCA) became a
requirement for his position. Report of Investigation (ROI) at 196. On March 23, 2011,2 March
25, 2011, January 31, 2012, June 26, 2012, and August 5, 2014, Complainant took a PCA. The
results were inconclusive each time. ROI at 198-99.

On November 5, 2013, Complainant met with the Staff Psychologist (SP) to discuss his issues
with the polygraph examinations. Complainant stated that he informed SP that he had been
diagnosed with generalized anxiety disorder. Soon after the meeting, Complainant obtained
medical documentation which he sent to his first line supervisor (S1) (no disability), a Special
Security Officer (SSO) (disability), and SP. Complainant’s medical provider noted that he had an
Adjustment Disorder with Anxiety. ROI at. 187-89.

On February 6, 2014, Complainant received a memo from the Chief of the Defense Intelligence
Central Adjudication Facility (C1) regarding his continued access to sensitive information. C1
noted Complainant’s diagnosis of an Adjustment Disorder with Anxiety and stated that his
seeking mental health care would not adversely affect his ability to obtain and maintain a
security clearance. Rather, Complainant’s decision to seek treatment was viewed as a positive
sign that he was willing to take steps to recognize and resolve a problem, which resulted in a
favorable security clearance determination. ROI at 35.

On May 12, 2014, Complainant attended a meeting with S1, his second-line supervisor (S2) (no
disability), and his third-line supervisor (S3) (no disability), during which he was informed that
his services were no longer required at USSOCOM because he could not pass a PCA.
Complainant stated that he learned that the Deputy Commander (DC) of USSOCOM made the
decision. ROI 195, 203-04, 213-14. On May 27, 2014, S3 sent Complainant a Letter of
Counseling as a follow-up to the meeting held on May 12, 2014. S3 stated that he supported the
USSOCOM’s decision not to retain Complainant’s services. ROI at 143.

On or about May 21, 2014, the Insider Threat Program Coordinator (ITPC) (no disability) sent
Complainant a memo noting that his inability to successfully complete a PCA posed a security
vulnerability. Accordingly, Complainant was being reassigned to the Agency’s Headquarters to
mitigate the vulnerability. ROI at pg. 146. On June 4, 2014, Complainant submitted a request to
appeal the Agency’s decision. ROI at pg. 149-150. On August 25, 2014, Complainant transferred
to the Agency’s Headquarters location in Washington, D.C. ROI at pg. 183.

2 Complainant stated that the Agency took approximately five years to “get around” to
administering the PCAs, and that the first time he took one was in March 2011. ROI at 196-7.
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EEO Complaint

On June 13, 2014, Complainant contacted an EEO Counselor and filed a formal EEO complaint
on July 23, 2014, alleging that the Agency discriminated against him on the basis of disability
(anxiety disorder) when:

1. on October 8, 2013, he was informed that his Top-Secret security clearance and
access to classified networks was revoked due to his inability to successfully
complete several PCAs;

2. on May 12, 2014, he was informed that his services would not be retained at
USSOCOM due to his inability to successfully complete PCA examinations; and

3. on May 27, 2014, he received notice of a reassignment to the Agency’s
Headquarters in Washington, D.C.

On November 10, 2014, the Agency informed Complainant that it was accepting claims 2 and 3
for investigation, but it was dismissing claim 1 for untimely contact with an EEO counselor and
failure to state a claim. Specifically, Complainant contacted the EEO office 248 calendar days
after he learned that his security clearance and access to classified networks were revoked, which
is beyond the 45-days required by 29 C.F.R. §§ 1614.105(a)(2) and 1614.604(c). Further, the
Agency found that claim 1 involved a security clearance decision, which must be dismissed
under 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. ROI at 120-22.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On December 4, 2015, Complainant filed a Motion for
Summary Judgment. The Agency filed an opposition to Complainant’s motion and cross Motion
for Summary Judgment on December 15, 2015; Complainant filed a reply on December 23,
2015.

The AJ issued a decision without a hearing on August 23, 2017. The AJ stated that, after
reviewing Complainant’s motion, the Agency’s response and cross motion, and Complainant’s
reply, he decided that a decision without a hearing was appropriate.

The AJ found that Complainant was an individual with a disability, but further found that
Complainant was not able to perform the essential functions of his position with or without an
accommodation, because the position required that Complainant successfully complete PCAs to
maintain a security clearance. The AJ noted that the Agency and USSOCOM were charged with
matters concerning national security and that it was not for the Commission to review and decide
that the criteria used to obtain and maintain a security clearance could be set aside.

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The AJ nonetheless found that Complainant was a qualified individual with a disability in that he
could perform the essential functions of his position without successfully completing a PCA, but
not where a security clearance was required. The AJ noted that Complainant was entitled to a
reasonable accommodation, but not necessarily one of his choice. The AJ determined that there
was no evidence that there was a vacant, funded position to which Complainant could be
reassigned at USSOCOM. Accordingly, the AJ found that the Agency met its burden of
providing a reasonable accommodation by reassigning him to a position at its headquarters. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, argues that a decision without a hearing was not
appropriate because there are genuine issues of material fact and the record has not been
adequately developed. Complainant also argues that the record is not sufficiently developed
because it is missing documents. Complainant requests that the Commission vacate the Agency’s
final decision and remand the case for additional discovery and a hearing.

The Agency argues that the record was adequately developed and that there are no genuine
issues of material fact. The Agency notes that Complainant did not raise the argument that the
record was not adequately developed prior to the appeal. The Agency claims that the parties
engaged in discovery, and Complainant had an opportunity to seek any purported deficient
information and did not do so. The Agency further argues that Complainant filed a Motion for
Summary Judgment believing that the record was sufficiently developed to support his motion.

The Agency also argues that the identified facts are either not material or are misconstrued by
Complainant. Regarding DC’s role in Complainant’s reassignment, the Agency states that
USSOCOM leadership had no role, and no authority to reassign Complainant. Rather,
Complainant was an Agency employee whose duty station was within a USSOCOM-controlled
facility.

Additionally, the Agency notes that Complainant claims that there are disputes about whether
various management officials were aware of Complainant’s disability prior to the determination
that he could not work at the USSOCOM facility and subsequent reassignment because SSO
likely informed others. However, the Agency argues that there is no evidence from which it
could be reasonably inferred that anyone in USSOCOM leadership was aware of Complainant’s
disability. The Agency requests that the Commission uphold the AJ’s decision and its final order.

STANDARD OF REVIEW

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
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MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s,
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”).

ANALYSIS AND FINDINGS

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d
103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Issuing a decision without holding a hearing is not appropriate for a case that can only be
resolved by weighing conflicting evidence. If the non-moving party “has not had the opportunity
to discover information that is essential to his opposition,” then a decision without a hearing is
inappropriate. Anderson, 477 U.S. at 250. The AJ must enable the non-moving party to engage in
sufficient discovery to respond to a motion for a decision without a hearing. After receiving an
opposition to a motion for a decision without a hearing, an AJ may order discovery as necessary.
29 C.F.R. § 1614.109(g)(2).

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We carefully reviewed the record and find that it is inadequately developed. Further, the AJ
improperly determined that there are no genuine issues of material fact or credibility that merited
a hearing. Therefore, the AJ’s issuance of a decision without a hearing was inappropriate.3

As an initial matter, we note that the AJ analyzed this complaint as a claim of a failure to provide
a reasonable accommodation under the Rehabilitation Act. However, we find that the claims
should also be considered as allegations of disparate treatment based on disability.

After a careful review of the record, we find that the AJ erred when he concluded that the record
was sufficiently developed and that there were no unresolved issues of material fact regarding
Complainant’s security clearance, and his subsequent transfer out of USSOCOM. Additionally,
while we note that claim 1 was properly dismissed as untimely, some background information
would be helpful to give context to the accepted claims in the instant complaint. We also find
that the record does not clearly show why Complainant was no longer permitted to work at
USSOCOM, after years of working at that location without having passed a PCA. As such, we
will vacate the Agency’s final order, and order the AJ to further develop the record to obtain
answers to the following questions:

1. Did Complainant lose his Top-Secret security clearance?
a. If so, when?
b. What work was Complainant allowed to perform after he lost his Top-Secret
security clearance?

2. If Complainant lost his Top-Secret security clearance, did he regain it?
a. If so, when?
b. Did Complainant resume his original duties after he regained his Top-Secret
security clearance?

3. Is passing a PCA a requirement to obtain/maintain a Top-Secret security clearance?

4. Is passing a PCA a requirement to work at USSOCOM?
a. If so, why is passing a PCA a requirement to work at USSOCOM for employees
who have obtained a Top-Secret security clearance without a PCA?

5. Why was Complainant allowed to work at USSOCOM for years without passing a PCA?

3 We note that, on appeal, the Agency argues that Complainant did not raise the argument that
the record was not adequately developed prior to the appeal, and thus waived his inadequacy
argument. However, we do not agree because the fact that a party does not contest the adequacy
of the record does not preclude the Commission from making that determination.

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Once the record has been adequately developed, the AJ will determine anew whether credibility
determinations are required such that a hearing is necessary or issue a new decision without a
hearing.

CONCLUSION

After a careful review of the record, including Complainant’s arguments on appeal, the Agency's
response, and arguments and evidence not specifically discussed in this decision, the
Commission VACATES the Agency’s final action and REMANDS the matter to the Agency in
accordance with this decision and the Order below.

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Miami FL District
Office Hearings Unit within fifteen (15) calendar days of the date this decision becomes final.
The Agency shall provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall further develop the record to obtain the additional information noted
above. The Administrative Judge will either hold a hearing and issue a decision or issue a
decision without a hearing on the complaint, in accordance with 29 C.F.R. § 1614.109. The
Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.

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).
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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.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint.
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However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive
this decision. 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 filed your appeal with
the Commission. 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. 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

September 30, 2019
Date