Tyson A.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionDec 17, 20192019005159 (E.E.O.C. Dec. 17, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson A.,1 Complainant, v. Thomas B. Modly, Acting Secretary, Department of the Navy, Agency. Appeal No. 2019005159 Agency No. 19-63005-03661 DECISION On August 6, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 4, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was tentatively hired for the position of Physical Security Specialist (Security Planner), GS-0080-12, at the Naval Support Activity of Naval Security Force Bahrain in Manama, Bahrain. On July 11, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race (African-American) and sex (male) when on June 10, 2019, he was informed that his tentative hire was rescinded. Complainant’s hire was tentative because it was conditioned, in relevant part, a background investigation not revealing any “suitability issues.” The EEO counselor interviewed the selecting official, and reported he said that he revoked Complainant’s tentative hire when the Federal Bureau of Investigation (FBI) flagged the results of his fingerprint check, conducted during the background security clearance investigation process, with the instruction not to issue him a 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. 2019005159 2 Common Access Card (CAC) until his clearance was finally adjudicated. Documentation in the record corroborates that the FBI did this. The selecting official also reportedly said he revoked Complainant’s tentative hire because a final adjudication could take 9 – 18 months, and that this was too long to wait without knowing if he would even eventually be cleared, especially since the standard civilian tour in Bahrain is 18 months. The vacancy announcement under which Complainant was tentatively hired states the position was an 18-month tour located in Manama, Bahrain. The EEO counselor also interviewed the Naval Support Activity Bahrain’s Command Security Manager and reported he said that even if the Base Commanding Officer granted Complainant an interim clearance, because the FBI flagged his fingerprint results with the instruction not to issue a CAC until final adjudication, Complainant would not have access to the base or use of government computers without a CAC. The Agency dismissed Complainant’s complaint for failure to state a claim. Citing legal authority, it reasoned that the administrative EEO complaint process does not have jurisdiction over a security clearance being revoked or denied. The instant appeal followed. On appeal, Complainant argues that he could have cleared things up and been granted a CAC card if the Command Security Manager had offered him a security interview. In opposition to the appeal, the Agency reiterates the findings in its FAD. 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). But 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. See Guidance. Section 703(g) is an affirmative defense to a charge of discrimination. Applying the above, we agree with the Agency that the Commission does not have jurisdiction over the Agency’s decision to deny Complainant an interim security clearance and connected CAC card. While Complainant argues that the Command Security Manager unfairly did not offer him a security interview, we find this really regards the interim clearance/CAC card denial. When an Agency excludes an individual from a position that requires a clearance because of a clearance denial, the Commission typically finds that the EEO claim on the connected exclusion fails to state a claim. Pangarova v. Army, EEOC Appeal No. 0398900028 (Mar. 29, 1990). 2019005159 3 But the Guidance, at footnote 11, provides that an employer that refuses to hire someone simply because it may take a long time for the individual to obtain a security clearance may not be entitled to claim the exemption in § 703(g). Accordingly, while the § 703(g) exemption applies to the Agency’s decision not to grant Complainant an interim security clearance/CAC card, it does not apply to its decision to revoke his tentative hire pending the final adjudication of his clearance. If Complainant proves that he was discriminated against based on his race or sex when the Agency revoked his tentative hiring before the final adjudication of his clearance (e.g., it waits for similarly situated whites or other evidence of discrimination regarding waiting), he could prevail and get relief. Accordingly, Complainant stated a claim. The FAD is REVERSED. ORDER (E0618) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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). 2019005159 4 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. 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 C.F.R. § 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. 2019005159 5 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 December 17, 2019 Date Copy with citationCopy as parenthetical citation