U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willa B.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120162798 Hearing No. 570-2009-00181X Agency Nos. DOS-F-055-08 & DOS-F-053-09 DECISION On September 7, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated August 11, 2016, dismissing two of her complaints 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 these complaints, Complainant was employed by the Agency as a Foreign Affairs Officer, GS-14 at the Bureau of Near Eastern Affairs, Office of Partnership Initiatives in Washington, D.C. On March 28, 2008, Complainant filed equal employment opportunity (EEO) Complaint 1 alleging that the Agency discriminated against her based on her sex (female) when: 1. She was subjected to a sexual harassing and intimidating hostile work environment by uniformed security guards from January 16, 2003 through January 4, 2008; and based on her sex2 and reprisal for prior protected EEO activity under Title VII when: 2. in or around January 2008, the Agency's Bureau of Diplomatic Security's Office of Professional Responsibility forwarded a criminal report of investigation involving her to the Bureau of Diplomatic Security's Office of Personnel Security and Suitability, which upon receipt began a review of her continued eligibility for a security clearance, and on February 21, 2008, as part of this process, the later office instructed her to contact the Agency's Office of Medical Services for an evaluation under the medical provisions of E.O. 10450 and 12968.3 Thereafter, Complainant filed an EEO complaint dated March 18, 2008 (Complaint 2) alleging that she was discriminated against based on her sex and reprisal for prior protected EEO activity under Title VII when: 3. on December 8, 2008, the Office of Personnel Security and Suitability requested that she submit to a mental evaluation with Agency's Office of Medical Services and implied that failure to cooperate could result in the suspension of her security clearance. The Agency dismissed issue 1. First, it reasoned that while Complainant alleged earlier incidents in support of her hostile work environment, there was a two-year gap between those incidents and an incident that occurred in November 2007. Thus, the Agency found the earlier incidents were not sufficiently related to the more recent incidents to be part of a single claim. Referring to the 45-calendar day time limit to initiate EEO counseling, the Agency found that Complainant did not initiate EEO counseling until February 8, 2008, and therefore, only incidents starting in November 2007 and onward could reasonably be part of her of hostile work environment claim. The Agency then dismissed the two incidents Complainant identified after the two-year gap: one on November 2, 2008, the other on January 4, 2008, for failure to state a claim. It reasoned that they did not rise to the level of actionable harassment. In accordance with 29 C.F.R. § 1614.107(b), the Agency notified Complainant that this dismissal was not appealable until final action is taken on the remainder of her complaint.4 The Agency accepted Issue 2 of Complaint 1 for investigation, and after reversal by this office on appeal in EEOC Appeal No. 0120092159 (Sep. 1, 2009), accepted Complaint 2 (issue 3). Following separate investigations on Complaints 1 and 2, Complainant separately requested hearings by an AJ on them. An AJ consolidated the complaints. Thereafter, AJ3 took over the adjudication of the consolidated complaints. Previously, Complainant submitted a hearings brief arguing for the reversal of the Agency's dismissal of issue 1, and the Agency defended the dismissal. In October 2013, AJ3 issued an order affirming the Agency's dismissal of issue 1, referring to the Agency's reasons in its dismissal letter. The parties continued to engage in the discovery process, and continued to file extensive and numerous motions and responses. Complainant has a Top-Secret security clearance which she represents is required by her position. On November 2, 2007, she emailed the Agency's Chief of the Division in the Bureau of Diplomatic Security, which is charged with overseeing contract Uniformed Division Officers. She wrote this is a "formal complaint of workplace violence," and complained that after being waved through by a guard while she was driving, the guard loudly shouted with anger, resentment, and agitation in his voice to another guard that Complainant "can't even look at me, man...." She recounted to the Chief that the guards had a history of harassing her, she remained deeply afraid for her safety, and she previously submitted formal written complaints about the guards to him and others to no avail. Complainant's complaint was referred to the Bureau of Diplomatic Security's Office of Professional Responsibility, which in November 2007, assigned one of its criminal investigators to investigate her claim. After the criminal investigation was completed and the report thereof approved, it forwarded a copy thereof, pursuant to the Agency's Procedures and Policy for Criminal Investigative Liaison, 12 FAH-4 H-425, to the Office of Personnel Security and Suitability, which makes determinations on security clearances. Complainant was not copied on the transmittal forwarding memorandum. Thereafter, the Office of Personnel Security and Suitability reviewed the report, along with Complainant's security file. A Personnel Security Specialist with this office stated that after reviewing this material, she recommended that it would be appropriate to request that the Agency's Office of Medical Services review the information. Her supervisor, the Chief of the Adverse Actions Division in her office approved. The Office of Medical Services is responsible for performing clinical evaluations on those referred by the Bureau of Diplomatic Security due to behavioral issues pursuant to E.O. 10450 & 12968 to determine if there are medical issues that might cause a significant defect in a subject's judgment or reliability that may bear on her maintaining her security clearance. The information forwarded to the Office of Medical Services included referenced Office of Professional Responsibility report of investigation, which was later revised. The Report indicated that since 2002, Complainant filed several reports with the Uniformed Division's senior management and another office alleging that she was subjected to sexual harassment and threatening behavior by guards. The Personnel Security Specialist stated that she recommended referring the information on Complainant to the Office of Medical Services based on Complainant's expressed fear for her safely in dealing with the uniformed security guards based on unsubstantiated allegations. The Chief (her supervisor) stated that he approved the referral based on the facts that Complainant had previously been referred to the Office of Medical Services in 2004 based on another incident involving her, and language in the Office of Professional Responsibility's report of investigation that Complainant feared for her safety. In January 2008, the above Chief made the written referral to the Office of Medical Services. The referral was not copied to Complainant. The above Personnel Security Specialist stated that she has never communicated with Complainant, and the Chief stated that prior to February 21, 2008, he never communicated with Complainant. After reviewing the information sent, the Office of Medial Services decided that it would be appropriate to conduct a diagnostic interview and perform psychological testing on Complainant prior to making any determination on whether she had medical issues that might cause a significant defect in her judgment or reliability. Accordingly, by letter to Complainant dated February 21, 2008, the Chief of the Adverse Actions Division in the Office of Personnel Security and Suitability, signing for the Director of the Office of Personnel Security and Suitability, requested that she make an appointment with the Office of Medical Services. Complainant did not make an appointment, and on December 8, 2008, the Chief again requested that she schedule an appointment with the Office of Medical Services. Complainant declined to make an appointment, and was not seen by the Office of Medical Services. Nevertheless, the Office of Personnel Security and Suitability later decided to close the review on Complainant's security clearance without revoking or suspending it, and Complainant maintained her clearance. In August 2016, AJ3 dismissed issues 2 and 3 for failure to state a claim. Citing Navy v. Egan, 484 U.S. 518, 520, 529 - 530 (1988) and EEOC's 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) (Policy Guidance), AJ3 found that the Commission is precluded from reviewing the substance of a security clearance decision and the validity of the security requirement itself. AJ3 found that Complainant's argument that the Commission has jurisdiction over issues 2 and 3 because they do not involve the substance of the security clearance process and/or the ultimate decision was unpersuasive. Specifically, AJ3 ruled: I find that Complainant's distinction between the initiation of a security clearance process and a challenge of the substance of the security clearance process and ultimate determination regarding revocation, denial or suspension is inapplicable here because it is undisputed that the Agency initiated a security clearance process and ultimately made a final decision regarding Complainant's suitability. Irrespective of the ultimate decision, Complainant is clearly challenging both the initiation of the review process and the substance of the process, i.e., the requirement that she submit to the MED [Office of Medical Services] mental health evaluation. I find that the Commission lacks jurisdiction to examine the substance of an Agency's security clearance process. In support of this, AJ3 cited Galbreath v. Department of the Navy, EEOC Request No. 05980927 (Nov. 4, 1999). He found that the rule in Galbreath was that the Commission does not have jurisdiction over the "rubric of the security clearance determination." Applying this rule, AJ3 found that the Agency's decision to refer Complainant to the Office of Medical Services was within the rubric of a security clearance determination. The Agency's final order fully implemented AJ3's decision. Complainant then filed the instant appeal. Complainant argues that issue 1 was improperly dismissed, and her case includes the invocation of procedures to review her security clearance, which is within the Commission's jurisdiction. In opposition to the appeal, the Agency argues that issues 1 - 3 were properly dismissed.5 ANALYSIS AND FINDINGS As an initial matter, we find that AJ 3 properly affirmed the dismissal of issue 1 for the reasons the Agency dismissed issue 1. Further, Complainant's equitable arguments below and on appeal for tolling the time limit are not persuasive. The dismissal of issue 1 is affirmed. The Commission does not have jurisdiction to review an agency's determination on the substance of a security clearance decision. Policy Guidance, Egan. Section 703(g) of Title VII is an affirmative defense to a charge of discrimination. However, the Commission is not precluded from determining whether the grant, denial or revocation of security clearances is conducted in a nondiscriminatory manner. Policy Guidance. This case turns on distinguishing the substance of making a determination to continue a security clearance from the process of making that determination. An agency's decision to initiate a review of a complainant's security clearance is not the result of any substantive decision making process, and hence is reviewable. Chatlin v. Navy, EEOC Request No. 05900188 (Jun. 1, 1990). Likewise, if a complainant alleged that the agency required female applicants to take a polygraph examination to obtain a security clearance, but did not require such an examination of male applicants, the Commission could review that aspect of the agency's process. Kingan v. National Security Agency, EEOC Appeal No. 01996328 (Feb. 15, 2002). We find that Galbreath is distinguishable from the case before us. In Galbreath, after the complainant complained to agency officials that people were following her home, gaining access to her apartment, and planting listening devices and watching her home and this was not confirmed by an investigation, management notified the security function in the agency that determines whether individuals are eligible to hold security clearances. The security function requested a physical examination of the complainant. After receiving the medical information, the security function revoked the complainant's security clearance. In Galbreath, the Complainant alleged that the revocation of her security clearance was discriminatory, not the Agency's decision to conduct a medical examination. The Commission found: Appellant maintained that she was discriminated against because the revocation of her security clearance was made prior to the agency receiving a medical report. Although this contention appears to be disputed by the record, we find that her concerns fall squarely within the rubric of the type of security clearance determination that is beyond the Commission's jurisdiction. Since appellant appears to be challenging the method by which the agency arrived at its decision, the dismissal of... [the allegation that she was discriminated against when she was notified of the intent to revoke her security clearance] was proper. In Galbreath, the information the agency relied on or did not rely on in deciding to revoke the clearance - medical information - was squarely within the rubric of the substance of a security clearance determination, which is outside the Commission's jurisdiction. Here, Complainant alleges that she was discriminated against when the criminal report of investigation involving her was forwarded to the Office of Security and Suitability, and when that Office initiated a review of her continued eligibility for a security clearance and asked her to undergo a medical examination. She contends that because of her sex and in reprisal for complaining that she has sexually harassed and intimidated over the years by uniformed guards, the Agency sought to shut her down and stop her from continuing to complain by asking her to undergo a psychological examination. She cites an article by a professor, published in the Harvard Journal of Law and Gender, that in employment discrimination litigation "nuts and sluts" refers to the defense tactic of portraying women who bring harassment and employment discrimination claims as too unstable to be believed or too promiscuous to be harassed by forcing them to undergo psychological examinations. The acts of forwarding information, initiating a review, and requesting a medical examination go to process, not substance, and is reviewable by the Commission. Chatlin and Kingan. This is different, for example, from alleging that the results of a request for a medical examination, after they become part of the security file, were discriminatory, i.e., either the examination report or recording that the subject refused to undergo the examination. This is because once statements (or other information) gathered during the 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. Branigan v. Department of Defense, EEOC Appeal No. 01973495 (Jan. 9, 1988). In opposition to the appeal, the Agency seeks to distinguish Chatlin and other Commission cases holding that the decision to initiate a review of a complainant's security clearance is not the result of any substantive decision making process, and hence is reviewable. The Agency argues that the Commission cases on initiation regard decisions made by officials outside agencies security divisions responsible for making determinations on clearances. We disagree that this is a ground for distinguishing these cases. See Anderson v. Navy, EEOC Appeal No. 0120092413 (Oct. 16, 2009) (the complainant was placed on administrative leave after people at work allegedly heard him say he was going to quit his job, commit suicide, and get an Uzi and take everyone out. On his own initiative, the complainant underwent a fitness for duty examination by a board certified forensic psychologist, who cleared him for work. Management informed the arm of the agency responsible for permitting security clearances that Complainant was undergoing a medical evaluation. Meanwhile, management allowed him to return to work. On behalf of this security arm, the agency asked the complainant for a copy of the medical examination, and he was advised that failure to comply could result in the revocation of his security clearance. He was also allegedly required to meet with security personnel and discuss his medical history and condition. The complainant alleged that he was discriminated against based on disability when the agency initiated a review of his security clearance, and for this review demanded medical information and documentation. The Agency dismissed the complaint, finding that the Commission is precluded from reviewing the substance of a security clearance determination. The Commission reversed. It agreed that the Commission will not review the substance of a security clearance decision. Regarding the medical matter, the Commission found that it had the "authority to review the agency's request for medical information... for the security clearance process.... The medical information... was very private, and demanding it states a claim.") In Anderson, the Agency, on behalf of its arm responsible for permitting security clearances, requested medical information from the complainant - this request was not initiated by officials outside the agency's security division responsible for making determinations on clearances. Also, the Agency's attempt to distinguish the case before us from other Commission cases because they regarded decisions made by officials outside agencies security divisions responsible for making determinations on clearances is unpersuasive. While both the Bureau of Diplomatic Security's Office of Professional Responsibility (which forwarded the criminal report of investigation) and Office Personnel Security and Suitability are part of the same Bureau, only the later office is responsible for making decisions on security clearances. The Agency's dismissal of issues 2 and 3 is reversed. On appeal, Complainant argues it was not until after the parties engaged in extensive discovery that the Agency raised the affirmative defense that the Commission does not have jurisdiction over issues 2 and 3 because they regard reviewing the substance of a security clearance determination. She requests that the Commission sanction the Agency for belatedly raising the issue by requiring the Agency to reimburse her attorney fees and expenses caused by this. The Agency counters that it should not be sanctioned. We agree with AJ 3's finding that Complainant did not show that the Agency waived its right to request dismissal on jurisdictional grounds, and find that in any event AJ 3 acted within his discretion to consider this argument. Further, while the Agency may have overlooked raising its affirmative defense earlier, this is not reason for sanction. Complainant also argues that AJ 3 improperly did not grant or act upon specified motions by her regarding discovery, resetting deadlines, and for a confidentiality order to protecting her medical information, and wrongly denied her motion for partial summary judgment on liability. In addition to responding to Complainant's appellate arguments, it argues that it is entitled to summary judgment on the merits. AJ 3's decision to dismiss issues 1, 2 and 3 on procedural grounds, and the Agency's final order fully implementing this is the matter before us now. We decline to make rulings on other matters, which would constitute or be akin to interlocutory rulings since they are not ripe, i.e., the Hearings Unit must make its final ruling on the merits of the case before we rule on other matters. The dismissal of issue 1 is AFFIRMED. The dismissal of issues 2 and 3, as numbered and recounted herein, is REVERSED. The Agency shall comply with the order below. ORDER The Agency shall submit, on Complainant's behalf, a request for a hearing on the remanded issues to the appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing so, and a copy of this decision, as well as the complaint file. The EEOC Hearings Unit shall resume processing under 29 C.F.R. Part 1614 from the point processing ceased. The Agency shall provide a copy of its request submission to Complainant, as well as the Compliance Officer as referenced below. The Agency shall complete the above actions within 35 calendar days from the date of this decision. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) 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). 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 (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 (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 June 29, 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 The Agency did not capture the sex basis in the definition of this issue. Complainant's arguments on appeal demonstrate that she is also alleging sex discrimination on this issue. 3 The Agency and Equal Employment Opportunity Commission Administrative Judge's (AJ) definition of issue 2 only captured the February 21, 2008 event. While when Complainant filed Complaint 1 she likely was not aware that the criminal report of investigation was forwarded to the Office of Personnel Security and Suitability or that this Office upon its receipt started a review of her continued eligibility for a security clearance, this better captures the thrust of her claim that her security clearance came under review (of which the February 21, 2008 event was a part). 4 Under 29 C.F.R. § 1614.107(b), the dismissal is also reviewable by an Equal Employment Opportunity Commission Administrative Judge (AJ) after a hearing request is made on other claims that were accepted for investigation. 5 Complainant submitted a sur-reply to the Agency's opposition to her appeal. We exercise our discretion to consider the sur-reply. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162798 10 0120162798