U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Filiberto H,1 Complainant, v. Admiral Michael S. Rogers, Director, National Security Agency, Agency. Appeal No. 0120180108 Agency No. 17-015 DECISION On October 5, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 13, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Cryptologic Liaison Officer, GG-13, in Seoul, Korea. On June 22, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race/national origin (Asian/Vietnam), and age (69 & 70) when: 1. After his permanent (meaning expected to be two to three years) change of station (PCS) from Ft. Meade, Maryland to Seoul, Korea effective August 8, 2016, it delayed and declined to make payment on some relocation expenses for him and his family, including air fare and lodging expenses prior to the move, shipping expenses, and storage fees; 2. It subjected him to a security investigation around December 2016, due to his debt/income ration caused by the above (which he resolved by paying the balance on his government travel card in December 2016); 3. On or about March 8, 2017, his Top Secret/Sensitive Compartmented Information clearance was suspended and his PCS to Seoul, Korea was "curtailed," partly due to his debt/income ratio, resulting in him being removed from consideration for promotion, and on or about March 24, 2017, his return to the United States;2 4. It changed or did not comply with the 30-day notice of lease termination language in his PCS order for Korea, resulting in him paying an approximately $3,800 penalty for not fulfilling the 30-day notice clause to vacate in the lease with his landlord before returning to the United States; and 5. After his clearance was suspended, he lost access to the Agency's network,3 preventing him from getting information needed to litigate his reimbursement claims with the Office of General Counsel and Special Action Office. The Agency did not address or define issues 1, 2, 4 & 5, and hence dismissed them by omission. A review of the documentation Complainant submitted on intake, the counselor's report, and his complaint shows it was difficult to discern if Complainant intended these issues, as applicable, to be background in support of or a listing of some harm for remedies purposes connected to issue 3, or if he intended issues 1, 2, 4 & 5 to be independently actionable claims. On appeal, Complainant's writings indicate he intended issues 1, 2, 4 & 5 to be independently actionable. While the Agency did not capture the promotion matter in issue 3, Complainant alleged this was an automatic consequence of his PCS to Korea being terminated, and hence we will not treat this matter as an independently actionable claim. The Agency dismissed issue 3 for failure to state a claim. It reasoned that the EEOC does not have jurisdiction over the merits of a security clearance decision. The instant appeal followed. 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); 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. The Agency proved its affirmative defense. The Agency cites 50 U.S.C. §§ 831, 832, which mandates that all positions in the Agency be filled with employees who have a clearance, except that as the Secretary may provide, conditional employment without access to sensitive cryptologic information to any applicant pending completion of the field investigation to grant a clearance, and in certain circumstances temporary access to classified information clearly consistent with national security pending full completion of the field investigation to grant a clearance. The Agency also cites to National Security Agency/Central Intelligence policy, which indicates the type of clearance required is eligibility for access to sensitive compartmented information. After Complainant returned from Vietnam on March 7, 2017, he received a routine security brief connected to this unofficial foreign travel. Complainant alleges that the Agency improperly suspended his clearance based on a contact he had on this trip, and his income/debt ratio caused by the discriminatory delay and non-payment of his relocation expenses. The EEO counselor interviewed the Chief of Security and Deputy Chief of Security, and relayed the following by them. Complainant's access to classified information and curtailment were caused by his having a Counterintelligence incident on his trip to Vietnam which he failed to report after his return, information about a previous curtailment from another PCS that fell within the realm of Counterintelligence that was unknown before he arrived in Korea, coupled with his recent financial case, referenced in issue 2.4 Issue 3 centers on Complainant's dispute about the merits on the Agency's reasons for suspending his clearance, and we don't have the jurisdiction to review this. Accordingly, the Agency's dismissal of issue 3 is affirmed. Complainant also took issue with the questions posed by Security around December 2016 and March 2017 in determining whether his clearance should remain active, i.e., lifestyle questions going back over 40 years, and so forth. Once statements gathered during the security clearance investigation are included in the report thereof, 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). This case applies to the questions asked by the Security Officer(s), and hence we do not have jurisdiction to review the questions asked. The Agency did not address issues 1, 2, 4 & 5. Because, based on the record before us, it was not discernable whether Complainant intended these issues to be actionable prior to his appeal, we will remand them for further elucidation and processing in accordance with the order below. We take this opportunity, however, to advise the parties that issue 2 does not involve an agency determination on the substance of a security clearance decision. While the Commission will not review the substance of a security clearance decision, it has authority to review an agency's decision to initiate review of a complainant's security clearance status, as this decision is not the result of any substantive decision making process. Chatlin v. Department of the Navy, 05900188 (June 1, 1990). The Agency's decision to dismiss issue 3, as identified herein, is AFFIRMED. Issues 1, 2, 4 & 5, as identified above, are remanded in accordance with the order below. ORDER On remand, the Agency may gather additional information on issues 1, 2, 4 & 5. Thereafter, the Agency shall either dismiss the claims or accept them for investigation in accordance with 29 C.F.R. § 1614.107 et seq.5 The Agency shall issue a letter to Complaint accepting and/or dismissing each remanded claim within 60 days of the date of this decision, unless Complainant agrees to an extension. A copy of the Agency's letter to Complainant accepting and/or dismissing each remanded claim 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 (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 March 20, 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 her June 2017 report, the EEO counselor wrote that Complainant was working at Ft. Meade in Maryland, and relayed that his tasks were checking scooters, delivering mail, and doing anything labor related. In his appeal brief, Complainant writes that his security clearance was reinstated on or about July 9, 2017. 3 On appeal, Complainant submits an Agency email dated September 30, 2017, explaining that his NSACSS account was "deprovisioned" on March 9, 2017 (about a day after his clearance was suspended), it was deleted on April 8, 2017, and he was given a new account in August 2017, resulting in the loss of his data from August 2016 to March 2017. 4 The EEO counselor relayed that the Chief of Security indicated that the financial matter centered around Complainant's refusal to pay his government travel card pending his dispute with the Agency about reimbursement (for relocation expenses), which was resolved by his paying the balance in late December 2016 or early January 2017. 5 For purposes of determining timeliness of EEO counseling, the Agency shall use the date Complainant initiated EEO counseling on complaint 17-015, unless use of an earlier date is appropriate. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180108 6 0120180108