0120121623
07-19-2012
Jennifer C. Rollings, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
Jennifer C. Rollings,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120121623
Agency No. 11-031
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 30, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as an Intelligence Access Manager at the Agency's Central Security Service. On September 1, 2011, she filed a formal complaint alleging that she was discriminated against in reprisal for equal employment opportunity (EEO) activity when:
1. Shortly after telling her supervisor and the Agency's police and Office of Security in September or October 2010 that Man 1, who she formerly dated, broke into her house, she was directed by the Office of Security to speak to an Agency psychologist;
2. After the Agency psychologist opined that Complainant was having delusions and Man 1 may not exist, her security clearance was suspended effective October 7, 2010;
3. On or about October 7, 2010, the Agency psychologist recommended that Complainant receive treatment for delusions by taking medication and getting therapy from an "EAS" psychologist, and advised she would follow up in April 2011 and June 2011, and did so;
4. On or about October 7, 2010, Complainant was detailed to the National Cryptologic Museum, where a security clearance is not required, and was harassed at the museum when:
a. in January 2011, she was moved from the back to the front desk as a receptionist which was embarrassing because people she knew came to the museum;
b. one day in January 2011 there was no heat or water in the museum and she was not sent home on paid administrative leave;
c. Man 1 visited the museum in February, March and April 2011, and no action was taken;1
5. she was detailed on August 17, 2011, to the Work Life Services or Human Resources where on the first day she input promotion certificates into the computer and placed them into frames; and
6. On August 19, 2011, she was placed on administrative leave.2
The Agency found that Complainant did not state a claim of reprisal because her reports to the Agency that Man 1 broke into her house were not connected to employment. It dismissed the clearance suspension issue for failure to state a claim. It reasoned that the Commission is precluded from reviewing the substance of security clearance decisions. The Agency also dismissed "all claims" connected to the clearance suspension on the grounds that no final action had been taken thereon and it involved a proposal to take an action. The Agency found Complainant was still in pay status and did not lose any benefits. It did not define or address issues 1, 3, 4, and 6.
CONTENTIONS ON APPEAL
On appeal Complainant reiterates her claims and raises new ones.3 On issue 3 she clarifies that the Agency psychologist, with the backing of Agency management, required her to submit to a six month treatment plan to be eligible to get her security clearance back. Eligibility for security clearance is a mandatory condition of employment with the Agency's Central Security Service. Complainant also raises a new basis of discrimination, i.e., regarded as having a mental disability.
In opposition to the appeal the Agency argues that the FAD should be affirmed. It argues that while Complainant alleges reprisal her first EEO activity was when she contacted an EEO counselor on July 7, 2011, and this EEO contact was untimely.
ANALYSIS AND FINDINGS
On appeal Complainant raises the new basis of being regarded as having a mental disability which is permissible because a new basis may be added on appeal. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970). Accordingly, Complainant's complaint now also alleges a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
To the extent Complainant claims that the Agency retaliated against her because in September or October 2010 she complained that Man 1 broke into her home we agree this fails to state a claim of reprisal discrimination. Like the Agency we fail to see how this constituted opposition or participation activity against discrimination prohibited by any of the statutes prohibiting employment discrimination enforced by the EEOC, and Complainant does not show any connection on appeal. 29 C.F.R. � 1614.103(a).
The Commission will not review an agency's determination with regard to the substance of security clearance decision or as to the validity of the security requirement itself. 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); see also Department of the Navy v. Egan, 484 U.S. 518 (1987). This applies to the suspension of security clearances. See Middleton v. Department of the Army, EEOC Petition No. 03940114 (Aug. 1, 1994). Accordingly, issue 2 fails to state a claim.4
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). In opposition to the appeal the Agency argues that Complainant failed to timely initiate EEO counseling. Complainant initiated EEO counseling on July 7, 2011. We find that she failed to timely initiate EEO counseling on issues 1, 3 and 4, and accordingly these issues are dismissed.
Complainant timely initiated EEO counseling on issues 5 and 6. These events occurred on August 17, 2011 and August 19, 2011. Moreover, these issues state a claim of discrimination because Complainant has alleged a harm, i.e., being reassigned to an allegedly undesirable assignment on August 17, 2011, and being taken out of work on August 19, 2011.
CONCLUSION
Issues 1, 2, 3, and 4, as set forth herein, are dismissed. The Agency's dismissal of issues 5 and 6, as set forth herein, is reversed.
ORDER
The Agency is ordered to process issues 5 and 6 in accordance with 29 C.F.R. � 1614.108.5 The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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 (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 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
July 19, 2012
__________________
Date
1 According to the counselor's report Complainant's acting supervisor at the museum indicated he never saw Man 1.
2 In its FAD the Agency defined Complainant's complaint as alleging reprisal when her security clearance was suspended and she was reassigned from the museum. After reviewing the complaint, as clarified by the counselor's report and Complainant's appeal brief, we redefined it as above.
3 We will not address new claims raised for the first time on appeal.
4 Accordingly, we need not determine whether Complainant timely initiated EEO counseling on issue 2. We disagree with the Agency that the suspended clearance was a proposed action because the suspension took effect.
5 The bases of discrimination are (1) mental disability, and (2) reprisal for prior EEO activity.
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0120121623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121623