Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120133317 Agency No. 5N1L13004 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 18, 2013, 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 a Work/Life Specialist at the Agency's Family Support Center, 305th Mission Support Squadron, McGuire Air Force Base facility in New Jersey, and was terminated therefrom. Complainant was hired effective July 11, 2005. She was terminated during her probationary period effective August 30, 2005, for not cooperating with a Commander-Directed Investigation (CDI) which was ordered in August 2005. The purpose of the CDI was to investigate Complainant's allegations of harassment, including Co-worker 1 grabbing her. Complainant filed an equal employment opportunity (EEO) complaint in September 2005, alleging that she was discriminated against when she was harassed, including by Co-worker 1, and was terminated. In Ogden v. Department of the Air Force, EEOC Appeal No. 0120080767 (Oct. 15, 2009), the EEOC found no discrimination on the complaint.1 Thereafter, on February 27, 2012, Complainant was hired by the Department of the Army. According to Complainant, the Army falsely accused her of committing federal crimes, and terminated her on March 20, 2012. Complainant writes that she filed an EEO complaint against the Army, and learned at an April 29, 2013, fact finding conference that the Army terminated her because she was charged on August 31, 2005, by the Air Force, with federal security violation crimes. She writes that she was not previously aware of this Air Force charges, received no paperwork thereon, and it occurred after she left the Air Force. The record contains a Joint Personnel Adjudication System (JPAS) Joint Clearance and Verification System (JCAVS) Person Summary report on Complainant, which was generated on February 27, 2012. It contains the notation "Civilian Employee (USAF) Access Suspended," and indicates the "Suspension Start Date" was August 31, 2005. A handwritten notation on the report indicates "Security Violations incident reported 2005." Another JPAS JCAVS report generated on March 16, 2012, on Complainant indicates a status date of August 31, 2005, and reads "Employee did not have access to classified material because she was in a non sensitive position. Therefore she did not have a security clearance. Employee was terminated due to refusal to cooperate in a Commander's directed inquiry." The record contains emails from Army officials from the day it hired Complainant. One recounted that Complainant was previously employed by the Air Force, that it looked like CPAP opened an ANACI investigation on her when she was offered her job, but no adjudication came back.2 The Army official expressed concern about the notation "Access Suspended" and inquired if the matter should be looked into further. Another document indicates the Army planned on looking into the suspension. It appears the documents referred to in this paragraph were provided by Complainant to the EEO counselor. A review of the record in EEOC Appeal No. 0120080767 confirms that Complainant's position was non-sensitive. On June 10, 2013, Complainant filed a formal complaint alleging that the Agency (Air Force) discriminated against her based on reprisal for prior protected EEO activity under Title VII when: 1. On April 29, 2013, she became aware that the notation "access suspended" was placed in her personnel, security, employment, and other career records on August 31, 2005, by Co-worker 1, and her first and second line supervisors. 2. On or about June 2005, her second line supervisor intentionally failed to follow CDI instructions. 3. On or about June 2005, Co-worker 1, and her first and second line supervisors intentionally committed fraud by placing security violations in her records on August 31, 2005. 4. She was subjected to a hostile work environment by Co-worker 1 and her first and second line supervisors when: a. On or about June 2005, she was physically and verbally assaulted, harassed, threatened and falsely charged with a security violation on August 31, 2005, b. On or about June 2005, to present, management intentionally and maliciously placed false information ("access suspended") in her security, employment, and other career records. The Agency dismissed issues 1, 2, and 3 for failure to state a claim. Citing EEOC precedent, the Agency found that the EEOC will not review an agency's determination regarding the substance of security clearance decisions, including suspensions of security clearances. The Agency dismissed issues 2, 3, and 4 for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on May 9, 2013, years beyond the 45 day calendar day time limit. On appeal, Complainant argues that while it is true the Commission has no authority to review security clearance determinations, she is not challenging the substance of a security clearance decision. Instead, she is challenging discriminatory statements placed in a variety of her employment records, including her personnel, security, and other career records. Complainant argues that the negative information in her employment records and its consequences are ongoing, and hence she timely initiated EEO counseling. In opposition to the appeal, the Agency argues that if "access suspended" refers to the suspension or revocation of a security clearance, than the matter fails to state a claim for the reason found in the FAD. It adds that assuming the notation "access suspended" was placed in Complainant's records, its meaning and import are unclear. The Agency notes it could mean something entirely different than a suspension of a security clearance, and one wonders whether it was a routine action, coinciding with her removal, rather than an actual suspension of a security clearance. It represents that it has been unable to verify whether such a statement was placed in Complainant's records. The EEO counselor made contact with Complainant's former first and second line supervisors. According to the counselor's report, these supervisors variously stated they were not aware of or had no recollection any security violation by Complainant, and both said they had no knowledge of the statement "access suspended" being placed in Complainant's records. The Agency also argues that it properly dismissed claims for failure to timely initiate EEO counseling. It argues in part that if Complainant's security clearance was suspended, she surely would have learned about it far earlier since she was employed by other government agencies in the intervening period (including the Department of Veterans Affairs). ANALYSIS AND FINDINGS The Commission will not review an agency's determination with regard to the substance of security clearance decision or 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). The Commission has previously held that once statements gathered during an 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." Schroeder v. Department of Defense, EEOC Request No. 05930248 (April 14, 1994). Here, the record reflects that in 2005, Complainant was in an Agency non-sensitive position which did not require access to classified material, and therefore she did not have a security clearance. Yet on August 31, 2005, one day after her termination, her JPAS/JCAVS computerized record, normally applicable to security clearances and accessible to other agencies, was noted with her status being "Access Suspended" and "terminated due to refusal to cooperate in a Commander's directed inquiry." Certainly, if a determination was made to deny Complainant a clearance, the merits of this determination would not be reviewable by the EEOC. But, as argued by the Agency, the notations of access denied (and the reason for termination) could be unrelated to a security clearance (or any determination on access to government information or facilities).3 Further, there is no indication in the record of a security clearance investigative report or its equivalent. Given all this, we liken the situation in this case to that of a negative reference accessible to outside agencies who are considering Complainant for hiring or continued employment. An allegation about a negative job reference states a claim. Upshaw v. Executive Office of the President, Office of Management and Budget, EEOC Appeal No. 0120102241 (June 15, 2011). Applying the above, we find that issues 1 and 3 state a claim. Likewise, we find that issue 4.b., and the portion of issue 4.a. regarding being charged with a security violation (which mirror issues 1 and 3) state a claim. We agree with the Agency that issue 2 fails to state a claim. As argued by the Agency on appeal, Complainant has not shown she was aggrieved by this matter. 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). The time limit to seek EEO counseling shall be extended when an individual shows she did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2). Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). Here, Complainant avers that she did not learn that the Agency charged her with a security violation or placed negative notations in her records until a fact finding conference on April 29, 2013. There is no indication that the Agency asked Complainant for documentation which could contradict this - such as Amy letters to her prior to the fact finding conference which may have contained the same information. We find that the Agency has not shown that prior to April 29, 2013, Complainant knew or should have known that the Agency charged her with a security violation and placed negative notations in her files regarding security. Accordingly, we find that Complainant timely initiated EEO counseling on May 9, 2013, on issues 3, 4.b., and the portion of issue 4.a. regarding being charged with a security violation, as well as issue 1.4 We find, however, that to the extent issue 4.a. does not regard being charged with a security violation, it is untimely. Complainant was aware of any physical or verbal assaults and threats when they occurred in 2005, and these matters were adjudicated in EEOC Appeal No. 0120080767. The Agency's dismissal of issues 1, 3, 4.b. and the portion of 4.a. regarding being charged with a security violation is REVERSED. Its dismissal of the remainder of the complaint is AFFIRMED. ORDER The Agency is ordered to process the remanded claims 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 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 February 12, 2015 __________________ Date 1 The above information was obtained from a review of the records in EEOC Appeal No. 0120080767. 2 While the meaning of these acronyms are not in the record, we believe they mean Civilian Personnel Advisory Center (CPAP) and Access National Agency Check with Written Inquiries + Credit Check (ANACI), which is conducted by the Office of Personnel Management (OPM) Investigations Service. 3 In Foote v. Monitz (Secretary of Energy), 751 F.3d 656, 658 - 659 (D.C. Cir. 2014), the Court found that Egan applies not just to determinations on whether to grant a security clearance, but also to an agency attempt to predict future behavior and to assess whether, under compulsion of circumstances or for other reasons, someone might compromise sensitive information. 4 We need not rule on the timeliness of issue 2 because we affirmed the dismissal of this issue on other grounds. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120133317 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 8 0120133317