Zetta B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120171714 (E.E.O.C. Nov. 20, 2018) Copy Citation 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family) when: 1) on May 25, 2016, her conditional offer for a position with the U.S. Consulate General in Dubai was rescinded; and 2) as recently as May 2016, she was subjected to a hostile work environment during the security clearance process, characterized by, but not limited to,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. 0120171714 2 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 In so finding, the Agency explained that it rescinded Complainant’s conditional offer of employment because several discrepancies, anomalies, and issues arose during the security certification process, including,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.” 0120171714 3 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). 0120171714 4 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. 0120171714 5 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. 0120171714 6 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 Copy with citationCopy as parenthetical citation