0120172705
01-17-2018
Jarrett C,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jarrett C,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF)),
Agency.
Appeal No. 0120172705
Agency No. ATF-2017-00217
DECISION
On August 7, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 17, 2017, 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant with the Agency's ATF for the position of Criminal Investigator (Special Agent).
On January 26, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that under the theories of disparate treatment and impact, the Agency discriminated against him based on his race (African-American) when after he failed an Agency polygraph examination it rejected him as a candidate for the position of Criminal Investigator (Special Agent) without giving him an opportunity to retake the polygraph nor after failing the polygraph, which is an unreliable tool, using alternate methods to assess his background.3
By letter to Complainant dated July 1, 2016, the Agency informed him of the following. He was one of the leading candidates for the position of Criminal Investigator (Special Agent), under job opportunity announcement CK1511159AN. Hiring decisions are based on information gathered from his application and all phases of the hiring process, to include a polygraph examination, background investigation, panel interview, and reference checks. Applicants must successfully complete a background investigation to be eligible for a Top-Secret clearance.
The Agency conducted a polygraph examination on Complainant on October 5, 2016. By letter to Complainant dated October 14, 2016, the ATF's Recruitment, Diversity, and Hiring Division notified him that he failed the polygraph examination, and the "basis for discontinuation was not otherwise sufficiently extenuated or mitigated" to allow him to proceed. The Agency added that in view of the requirements of the position and the information received during the polygraph examination, it determined selecting him would not be in ATF's best interests. Complainant formally requested the Agency to reconsider this decision. On November 17, 2016, the Agency denied Complainant's request for reconsideration, explaining there was nothing in his request that warranted allowing him to proceed with the hiring process. This prompted Complainant to initiate EEO counseling.
The Agency dismissed Complainant's complaint for failure to state a claim. It reasoned that an EEO complaint about the denial of a security clearance and any adverse employment action based thereon is not actionable under Title VII. Referring to its July 1, 2016 letter to Complainant, the Agency found that he had to pass a background investigation and polygraph examination to get a Top-Secret clearance, a requirement for the position. Complainant then filed the instant appeal.
ANALYSIS AND FINDINGS
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. This means that the Agency must raise it and prove the challenged employment decision was made because of national security requirements imposed by statute or Executive Order. It is not an unlawful employment practice to deny employment opportunities to an individual who does not fulfill the national security requirements of the position being filled. However, the legislative history of � 703(g) makes it clear that the Commission is not precluded from determining whether the grant, denial or revocation of a security clearance is conducted in a nondiscriminatory manner. Guidance.
Here, the Agency did not prove its affirmative defense. In a May 23, 2017, letter by the Agency's Assistant Director of Pubic and Governmental Affairs to a Congressman, the Agency advised that regarding the polygraph, Complainant passed the "National Security portion of the exam" but failed the "suitability portion" thereof. Hence, the record does not show that the polygraph results were related to the Agency's affirmative defense that Complainant was denied employment because he did not meet national security requirements (as opposed to suitability requirements).
To the extent that there is any question about the probity of the above letter since it came out of the Agency's Public and Governmental Affairs office rather than the Recruitment, Diversity, and Hiring Division or an Agency security function, we find that the Agency in its FAD did not accurately capture the wording of the July 1, 2016 letter, upon which it relied. Specifically, the letter reads:
...Upon receipt of your signed acknowledgement that successful completion of the training is required, favorable completion of your background investigation, polygraph examination, medical examination, and drug screening test result and upon the availability of related budgetary funding, you will be notified of the final employment decision....
Background Investigation and Polygraph: (emphasis in original) Applicants must successfully complete a background investigation to be eligible for a Top-Secret clearance. Enclosed you will find a Security Package for ATF Employment. The packet contains specific instructions and forms to be completed by you and returned to our office. In addition, you will be contacted and scheduled for a polygraph examination.
While the letter reflects that applicants must pass a background investigation to be eligible for a Top-Secret clearance, nowhere therein is the purpose of the polygraph explicitly identified. The Agency has not shown that it rejected Complainant for employment because he did not fulfill national security requirements.
In his complaint, Complainant claimed that the ATF has allowed other applicants who fail the polygraph to retake the test, and indicated it should do the same for him. This allegation goes to something over which the EEOC has jurisdiction - procedures, not the substance of a security clearance determination (even if the ATF showed the polygraph was part of the Top-Secret clearance process). Kingan v. National Security Agency, EEOC Appeal No. 01996328 (Feb. 15, 2002) (if a complainant alleged that an agency required female applicants to take a polygraph examination, but did not require such an examination for male applicants, it could review the process).
We add that while the July 1, 2016 letter reflects that Complainant must complete a background investigation to be eligible for a Top-Secret clearance, it does not explicitly reflect that such a clearance is a requirement for the position, and even it did, there is no documentation in the record identifying the statute or Executive Order under which the position was designated a national security position with a requirement of a clearance, nor that the Agency so designated it.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims, as redefined in this decision, in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 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.
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. 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
January 17, 2018
__________________
Date
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.
2 In his Notice of Appeal Complainant represented that he received the FAD on July 10, 2017. The FAD in the record does not contain a certificate of mailing and the Agency did not provide any evidence of the date Complainant received the FAD. Given this, we deem Complainant's appeal to be timely.
3 To better capture the complaint, we independently defined it instead of accepting the Agency's definition thereof, which did not capture the full claim.
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