Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120113279 (E.E.O.C. Mar. 20, 2013)

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

Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Appeal No. 0120113279

Agency No. ATF-2010-00706

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated May 31,
2011, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Special Agent,
GS-1811-13, with the Agency's Nashville Field Division in its Knoxville Field Office located
in Knoxville, Tennessee. As a condition of Complainant’s employment, he needed a Top
Secret security clearance. In October 2008, Complainant was notified by the Agency's
Personnel Security Branch (PSB) that he was required to submit information in connection with
the recertification of his Top Secret security clearance.

On February 5, 2010, the PSB Security Program Manager, notified Complainant his security
clearance was being suspended as a result of his failure to submit additional documentation
needed to adjudicate his periodic reinvestigation and an ongoing Internal Affairs (IA)
investigation.

On March 29, 2010, Person A, the Assistant Special Agent in Charge (SAC), Nashville Field
Division, proposed Complainant's indefinite suspension based on the suspension of his security
clearance.

0120113279

2
On July 16, 2010, the Agency sent Complainant an updated letter stating that the reason for the
suspension of Complainant's security clearance was "his failure to provide debt resolution
information required for adjudication of his periodic reinvestigation." The ongoing IA
investigation was not listed as a reason for his security clearance suspension.

On July 30, 2010, the Agency issued a Notice of Final Decision on Complainant’s Indefinite
Suspension. In this letter, Complainant was indefinitely suspended by Person B, Acting SAC,
Nashville Field Division, because the duties of a special agent could not be performed without
a security clearance. The Notice stated that despite repeated requests for information,
Complainant failed to provide the documentation necessary to adjudicate his reinvestigation.

On August 23, 2010, Complainant filed an appeal with the Merit Systems Protection Board
(MSPB), appealing his indefinite suspension due to the revocation of his security clearance. In
his MSPB appeal he noted that his indefinite suspension was for an alleged internal affairs
investigation and non-compliance with document requests to complete his security clearance
renewal.

Thereafter, on September 23, 2010, the Acting Security Program Manager Office of
Professional Responsibility and Security Operations (OPRSO) issued a memorandum notifying
Complainant of the reinstatement of his security clearance. Although the PSB reinstated his
Top Secret security clearance, the memorandum noted that on several occasions beginning on
October 15, 2008, Complainant was requested to complete and submit a personnel security
package in order to initiate his reinvestigation. The memorandum mentioned that only after
receiving a proposed notice to suspend his security clearance, did Complainant provide the
completed security package on March 13, 2009. Additionally, the memorandum noted that
Complainant had been unresponsive to attempts by the adjudicator to retrieve specific
information in order to successfully resolve financial concerns.

On October 18, 2010, Complainant filed a motion to dismiss his MSPB appeal stating the
circumstances which led to his indefinite suspension, the revocation of his security clearance,
had been resolved and there was no further need for the appeal. Complainant’s motion was
granted and the MSPB dismissed his appeal on October 19, 2010.

Complainant filed a formal complaint dated November 5, 2010, alleging that the Agency
subjected him to discrimination on the basis of race (African-American) when:

On February 5, 2010, Complainant was issued written notification from the Office of
Professional Responsibility and Security Operation (OPRSO) that his Top Secret
security clearance was suspended based on an ongoing Internal Affairs Division (IA)
investigation and his failure to provide information necessary to adjudicate his periodic
reinvestigation.

The Agency dismissed Complainant’s complaint for raising the same matter in an August 23,
2010 MSPB appeal. Alternatively, the Agency dismissed Complainant’s complaint for failure
0120113279

3
to state a claim, noting that the EEOC has held that it has no authority to review the substance
of security clearance determinations.

On appeal, Complainant states that his formal complaint was based on the suspension of his
security clearance because of an ongoing ATF Internal Affairs investigation and failure to
provide information necessary to adjudicate his periodic investigation. Complainant notes the
MSPB appeal and voluntary dismissal was based solely on the restoration of his security
clearance. Complainant notes the MSPB proceeding did not address the reasons for the
Internal Affairs investigation. Complainant states that the Internal Affairs investigation was
based on un-corroborated information provided by a former confidential informant who had
racial animosity towards him.

In response to Complainant’s appeal, the Agency recognized Complainant was arguing that the
MSPB proceeding did not address the reasons for or circumstances surrounding the IA
investigation, and thus, he claimed his complaint should not have been dismissed. However,
the Agency claimed this is irrelevant because Complainant never alleged that he was
discriminated against due to the ongoing IA investigation. Specifically, the Agency noted that
Complainant never alleged in his complaint that he was discriminated against due to the
ongoing IA investigation; rather, he alleged he was discriminated against because his security
clearance was suspended because of the ongoing IA investigation and his failure to provide
information necessary to adjudicate his periodic reinvestigation.

However, the Agency stated that even if Complainant had alleged that he was subjected to
discrimination because of an IA investigation, his complaint should still be dismissed. The
Agency noted that the Notice of Suspension of Security Clearance dated February 5, 2010,
issued to Complainant stated that his Top Secret security clearance was suspended pending the
outcome of an IA investigation and as a result of his failure to provide information necessary to
adjudicate his periodic reinvestigation. However, the Agency noted a corrected Notice of
Suspension of security clearance dated July 16, 2010, clarified that Complainant’s security
clearance suspension was based solely on his failure to provide information necessary to
adjudicate his periodic reinvestigation and not because of the open IA investigation. Thus, the
Agency argued that the issue regarding the IA investigation as a reason for the suspension of
Complainant's security clearance was moot. Additionally, the Agency argued that to the extent
Complainant is asserting a separate discrimination claim for the ongoing Internal Affairs
investigation he fails to state a claim. Moreover, the Agency noted the Commission does not
have jurisdiction to review the substance of security clearance determinations.

ANALYSIS AND FINDINGS

At the outset, we note that on appeal, Complainant concedes that his formal complaint was
based on the suspension of his security clearance.

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
0120113279

4
Exception Contained in § 703 (g) of the Civil Rights Act of 1964, as Amended. EEOC
Notice No. N-915-041 (May 1, 1989); see also Dep’t of the Navy v. Egan, 484 U.S. 518
(1988); Office of Personnel Management v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012). While
the Commission is precluded from reviewing the substance of a security clearance, it is not
precluded from determining whether the requirement to maintain one in order to occupy a
particular position was applied in a nondiscriminatory manner. See Thierjung v. Defense
Mapping Agency, EEOC Request No. 05880664 (November 2, 1989); Fields v. Dep't of
Defense, EEOC Request No. 05930468 (December 23, 1993); see also Fonda-Wall v. Dep't of
Justice, EEOC Appeal No. 0720060035 (July 28, 2009), citing Okuma v. Dep't of the Navy,
EEOC Appeal No. 01A31383 (October 14, 2003); Lyons v. Dep't of the Navy, EEOC
Request No. 05890839 (Mar. 22, 1990). A fair reading of the complaint in this matter,
however, does not suggest that Complainant is alleging a discriminatory requirement to
maintain a security clearance.

Moreover, to the extent Complainant’s complaint involved a claim surrounding the internal
affairs investigation we find this issue was properly dismissed by the Agency. The
Commission has held that an employee cannot use the EEO process to lodge a collateral attack
on another proceeding. See Wills v. Dep’t of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. No. 05940585 (September
22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). The
proper forum for Complainant to have raised his challenges to actions related to the internal
affairs investigation is generally within that proceeding itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack these actions.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
0120113279

5
Part 1614

(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
0120113279

6
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 20, 2013
Date