Petition for Writ of Certiorari — Walton B. Campbell, Petitioner v. Ryan D. McCarthy, Secretary of the Army
Supreme Court briefOct 1, 2020
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APPENDIX
INDEX TO APPENDICES
Opinion in the United States Court of Appeals for the Fourth Circuit
(March 5, 2020) .................................................................................................... App. 1
Order to Enter Final Judgment in the United States District Court for
the Eastern District of Virginia Alexandria Division
(June 22, 2018) .................................................................................................. App. 27
Judgment in the United States District Court for the Eastern District of
Virginia Alexandria Division
(June 26, 2018) .................................................................................................. App. 32
Order in the United States District Court for
the Eastern District of Virginia Alexandria Division
(June 18, 2018) .................................................................................................. App. 33
Memorandum Opinion in the United States District Court for
the Eastern District of Virginia Alexandria Division
(April 16, 2018) .................................................................................................. App. 34
Order in the United States District Court for
the Eastern District of Virginia Alexandria Division
(April 16, 2018) .................................................................................................. App. 43
Order in the United States District Court for
the Eastern District of Virginia Alexandria Division
(September 18, 2017) .......................................................................................... App. 44
Order Denying Petition for Rehearing and Rehearing en banc in the United
States Court of Appeals for the Fourth Circuit
(May 4, 2020) .................................................................................................. App. 45
Order Entering Judgment of the Equal Employment Opportunity
Commission
(March 19, 2014) ................................................................................................. App. 46
Order for Damages Evidence of the Equal Employment Opportunity
Commission
(January 13, 2014) .............................................................................................. App. 68
Decision of the Equal Employment Commission
(May 18, 2010) .................................................................................................. App. 71
i
Recommended Decision of Administrative Judge Mark W. Harvey of the
Department of Defense Office of Hearings and Appeals
(September 5, 2007) ........................................................................................... App. 82
Statutory, Regulatory, and Executive Order Provisions Involved ................... App. 94
ADEA
.................................................................................................. App. 94
Title VII ................................................................................................ App. 100
Title 5 – Government Organization and Employees
§ 2302 ................................................................................................ App. 104
National Security Act of 1947................................................................ App. 110
DOD 5200.2-R ........................................................................................ App. 117
Code of Federal Regulations Part 732
National Security Positions.............................................................. App. 161
Executive Order 10450 Security requirements for Government
employment ....................................................................................... App. 163
Executive Order 12968 Access to Classified
Information ....................................................................................... App. 170
Executive Order 13292 Further Amendment to Executive Order 12958,
as Amended, Classified National Security Information ................. App. 181
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1890
WALTON CAMPBELL,
Plaintiff – Appellant,
v.
RYAN D. MCCARTHY, Secretary of the Army,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:17-cv-00568-CMH-TCB)
Argued: December 10, 2019
Decided: March 5, 2020
Before KING, AGEE, and RICHARDSON, Circuit Judges.
Vacated and remanded by published opinion. Judge King wrote the opinion, in which
Judge Agee and Judge Richardson joined. Judge Richardson wrote a separate concurring
opinion.
ARGUED: Nina Yuanyuan Ren, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C.,
Washington, D.C., for Appellant. Sean Douglas Jansen, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Richard R. Renner,
KALIJARVI, CHUZI, NEWMAN & FITCH, P.C., Washington, D.C., for Appellant. G.
Zachary Terwilliger, United States Attorney, Lauren A. Wetzler, Chief, Civil Division,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
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KING, Circuit Judge:
Plaintiff Walton Campbell, a civilian employee of the Army Corps of Engineers,
initiated this civil action against the Secretary of the Army (the “Army”) challenging the
Army’s decision to suspend him from his employment pending review of his security
clearance. 1 In his operative complaint, Campbell alleges three claims: a claim under Title
VII of the Civil Rights Act of 1964 (the “Title VII claim”), a claim under the Age
Discrimination in Employment Act of 1967 (the “Age claim”), and a claim under the
Whistleblower Protection Act of 1989 (the “Whistleblower claim”). After dismissing
without prejudice the Whistleblower claim for failure to exhaust administrative remedies,
the district court awarded summary judgment to the Army on the Title VII and Age claims.
Shortly thereafter, the court denied Campbell’s motion to alter or amend judgment.
Campbell has appealed and, as explained below, we are satisfied that the Supreme Court’s
decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), deprived the district
court of jurisdiction to review any of Campbell’s claims. We therefore vacate and remand
for dismissal.
Campbell started these proceedings in the District of Columbia. After that district
court granted the Army’s motion to transfer venue to the Eastern District of Virginia,
Campbell filed his operative complaint in Alexandria. See Campbell v. Speer, No. 1:17cv-00568 (D.D.C. May 17, 2017), ECF No. 11; Campbell v. Speer, No. 1:17-cv-00568
(E.D. Va. Jul. 7, 2017), ECF No. 28. Campbell therein sued the Acting Secretary of the
Army in his official capacity. The Secretary of the Army in his official capacity has
properly been substituted as the defendant. See ECF Nos. 3, 44.
1
2
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I.
On July 27, 2004, Walton Campbell began working as a physical scientist at the
Topographic Engineering Center, a laboratory of the Corps of Engineers’ Engineer
Research and Development Center. 2 Located adjacent to Fort Belvoir in Alexandria, the
Topographic Engineering Center develops “products that could improve the U.S. Army’s
warfighting capabilities,” and physical scientists employed there must maintain a top secret
security clearance with sensitive compartmented information access. See J.A. 127. 3
Because of the classified nature of its work, the Topographic Engineering Center is a
“restricted area” subject to prohibitions against recording and photographic devices in
certain sections thereof. And many Topographic Engineering Center employees work in
the Center’s Sensitive Compartmented Information Facility, in which recording and
photographic devices are prohibited entirely.
A.
Within months of starting his job, Campbell became embroiled in a workplace
dispute with three of his coworkers. Because the escalation of that dispute resulted in the
suspension of Campbell’s employment pending review of his security clearance by the
Army’s Central Clearance Facility, we first relate the circumstances of that dispute.
2
The Topographic Engineering Center is now called the Army Geospatial Center.
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal. Because this appeal concerns an award of summary judgment,
we recite the facts in the light most favorable to Campbell, as the non-moving party. See
United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th Cir. 2018).
3
3
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1.
When Campbell began working at the Topographic Engineering Center, he did not
possess a security clearance. As a result, he was assigned duties unrelated to his physical
scientist position while his security clearance application was processed. During that time,
Campbell was assigned to work on the Source Acquisition Team. Campbell’s first-level
supervisor was then Mary Pat Santoro, the Chief of the Information Services Branch.
While he was assigned to the Source Acquisition Team, Campbell would regularly
have lunch with three of his younger coworkers, Tish Kennan, Alana Hubbard, and Marty
Downing. Kennan, Hubbard, and Downing wished, however, that Campbell would not
socialize with them because his behavior made them uncomfortable. That was because,
among other things, Campbell described himself as a person who often sought revenge and
remarked that he knew how to construct bombs. Kennan, in particular, related that
Campbell frequently paid her unwanted attention. Campbell would stare at her and refer
to her as “Trouble.” See J.A. 214. He also told Kennan that he had located information
about her estranged husband on the internet and that he had driven through the
neighborhood where she resided. On several occasions, Campbell had given Kennan
unwanted gifts.
For example, Campbell gave Kennan a battery cleaner after she
commented that she needed to jump-start her car. And Campbell often followed Kennan
around, “wait[ing] for [her] outside the bathroom” or “[standing] aside while [she] was
having conversations with others so that he could follow [her] afterwards.” Id. at 218.
On February 9, 2005, the Army granted Campbell a top secret security clearance
with sensitive compartmented information access. Campbell’s security clearance thus
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authorized him to access information that, if released, would result in “exceptionally grave
damage to national security.” See J.A. 196. That security clearance also allowed Campbell
to access the Sensitive Compartmented Information Facility, and his workspace was
relocated therein. In accepting his security clearance, Campbell agreed to abide by certain
conditions. Relevant here, Campbell agreed to report any change in his legal residence
within seven days.
2.
Thirteen days later, on February 22, 2005, Campbell was transferred from the
Source Acquisition Team to the Current Operations Team. As a result of this transfer,
Charles Lopez, the Chief of the Terrain Analysis Branch, became Campbell’s first-level
supervisor.
And although Campbell no longer worked with Kennan, Hubbard, or
Downing, he continued to visit them in the Source Acquisition Team’s workspace and to
involve himself in their lunch plans. By the end of that week, on February 25, 2005,
Campbell had worn out his welcome. That day, without invitation, Campbell went to the
Source Acquisition Team’s workspace and watched Kennan and Hubbard as they worked.
At one point, R. Paul Harwig — a Division Chief of the Topographic Engineering Center
and Campbell’s second-level supervisor — entered the workspace and observed Campbell
“sitting too close” to Kennan and Hubbard. See J.A. 197. When Kennan and Hubbard left
to go to lunch, Campbell followed them. Hubbard recalled that “because of his disturbing
behavior,” they were too “scared” to tell Campbell that he was not welcome to join them
for lunch. Id. at 216.
5
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Following an unpleasant lunch outing to a Chili’s restaurant, Kennan and Hubbard
reported their concerns about Campbell’s behavior to Division Chief Harwig. More
specifically, they informed Harwig that they were planning to tell Campbell that “he could
no longer go to lunch and that he could no longer follow [them] around [the Topographic
Engineering Center], and that [they] did not want any more gifts from him.” See J.A. 21617. In response, Harwig asked the Current Operations Team Leader, Jeffrey Popp, to
inform Campbell that he was no longer permitted in the Source Acquisition Team
workspace, that he was not to distract Kennan and Hubbard from their work, and that he
was to minimize his contacts with Kennan and Hubbard. Team Leader Popp relayed those
instructions to Campbell on February 28, 2005.
3.
Shortly after meeting with Team Leader Popp, on March 7, 2005, Campbell sent an
e-mail message entitled “Whistleblowing on aberrant staff behavior” to Topographic
Engineering Center leadership, including Division Chief Harwig and Branch Chief Lopez.
See J.A. 199-205. In that message and an accompanying attachment, Campbell denied any
wrongdoing and made allegations concerning the “professionalism and mental stability of
[Kennan and Hubbard], who hold current [sensitive compartmented information]
clearances and have access to classified materials.” Id. at 199. Regarding Kennan,
Campbell claimed that her complaints about him were the result of a laundry list of
“personal stresses.” Id. at 199, 203-04. And Campbell painted Hubbard as a “disgruntled
employee,” who, during the lunch outing of February 25, 2005, complained “angr[ily] and
openly” about having to train new employees (a complaint that Campbell surmised was
6
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“unusual for a proud mother of two”) and used “vitriolic language” to describe her
supervisor’s and a coworker’s professional competence. Id. Following an investigation
into Campbell’s allegations, Harwig concluded that Campbell’s e-mail “was in retaliation
as a result of having his feelings hurt and that his allegations [had] no merit.” Id. at 208.
On the evening of March 9, 2005, after learning of Campbell’s allegations against
her, Kennan reported to Branch Chief Santoro that Campbell’s behavior made her feel
unsafe at work. And Kennan explained to Santoro that she no longer felt safe outside of
work because Campbell had tried to follow her home from the Topographic Engineering
Center that afternoon. Kennan related that, as she was driving home, she saw Campbell
pull into traffic behind her.
Believing that Campbell was following her, Kennan
“purposefully made a series of turns to evade him” and returned to the Topographic
Engineering Center to make her report to Santoro. See J.A. 209.
Division Chief Harwig and Branch Chief Lopez met with Campbell on March 10,
2005, and informed him that he was under investigation for misconduct related to his
interactions with Kennan and Hubbard. On that occasion, Campbell was instructed to
avoid all contact with Kennan and Hubbard and to relocate his workspace from the
Sensitive Compartmented Information Facility to a less-restricted section of the
Topographic Engineering Center. On the next day, March 11, 2005, Harwig, Lopez, Team
Leader Popp, and the Topographic Engineering Center Chief of Security, Thomas Cain,
met with Campbell regarding Kennan’s stalking allegations. That meeting was held in a
room of the Topographic Engineering Center in which information classified as secret may
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After the meeting, Campbell remained in the room while potentially
classified information was discussed.
During the weekend, in addition to relating her stalking allegations to Branch Chief
Santoro, Kennan obtained from a Fairfax County magistrate an emergency protective order
against Campbell, which resulted in the issuance of an arrest warrant for stalking. 4 When
Fairfax County police officers sought to execute that warrant using the legal residence that
Campbell had reported to the Topographic Engineering Center, they discovered that it was
a post-office box address. Because the officers were unable to locate Campbell’s residence,
the Fort Belvoir Military Police and Security Chief Cain detained Campbell upon his
arrival at work on Monday, March 14, 2005. Campbell was searched by the Fairfax County
police officers when they arrived to execute the arrest warrant. The search revealed that
Campbell was wearing a microcassette recorder with a microphone that was wired from
the recorder through his shirt sleeve to his wristwatch. The officers also recovered a
cellphone with a camera, two additional driver’s licenses in Campbell’s name from
Louisiana and Texas, a digital voice recorder, and a pen that appeared to contain a
recording device (but that was actually an FM radio).
Believing that Campbell’s possession of the recording devices posed a national
security threat, the Army Criminal Investigation Command and the FBI were notified. FBI
Special Agents interviewed Campbell, and Campbell explained that he intended to record
On October 19, 2005, Campbell was tried on the stalking charge in a Fairfax
County court. The jury found Campbell not guilty.
4
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his conversations with Kennan so that he would have proof if she threatened him.
Campbell also admitted that he attempted to record the March 11, 2005, meeting in order
to protect himself from Kennan’s stalking accusations. The FBI Agents concluded that,
although Campbell had committed a security violation, he had not managed to compromise
any classified information.
B.
Contemporaneously, the Director of the Topographic Engineering Center and
Campbell’s third-level supervisor, Robert Burkhardt, notified the Commanding Officer of
the Engineer Research and Development Center, Colonel James Rowan, of Campbell’s
stalking arrest and his possession of the recording devices and out-of-state driver’s licenses.
Director Burkhardt also informed Colonel Rowan that Campbell had provided a post-office
box address as his legal residence. Based on that information, Rowan determined that
Campbell “posed a risk to national security” and suspended Campbell’s access to classified
information. See J.A. 123, 243. Rowan subsequently recommended that the Central
Clearance Facility permanently revoke Campbell’s security clearance.
That
recommendation was predicated on Rowan’s conclusion that revocation was “in the
interests of national security” because of Campbell’s “potential criminal conduct, personal
conduct and inappropriate use of photography equipment and recording devices in a
restricted area.” Id. at 191, 245. Before making the recommendation regarding Campbell,
Rowan had never recommended a permanent revocation of an Engineer Research and
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Development Center employee’s security clearance. On April 4, 2005, Campbell was
notified that his security clearance had been suspended. 5
By memorandum of April 27, 2005, Division Chief Harwig notified Campbell of
his proposal to suspend Campbell from his employment with the Army pending review of
his security clearance by the Central Clearance Facility. This proposed suspension was
based on Campbell’s provisional loss of his security clearance, plus the requirement of
Campbell’s position that he maintain a security clearance. And the memorandum further
specified why Campbell’s security clearance had been suspended:
1.
“Violation of security regulations or practices whereby [Campbell]
brought recording devices, both voice and image into a secure facility
on multiple occasions.” See J.A. 188.
2.
“Acts of commission that indicate poor judgment, unreliability or
untrustworthiness whereby [Campbell] covertly recorded
conversation with [his] supervisors.” Id.
3.
“Knowingly misrepresenting [his] current legal residence to [his]
supervisor, Mr. Chuck Lopez.” Id.
4.
“Acts of commission that indicate poor judgment, unreliability or
untrustworthiness whereby [Campbell] created a disturbance in the
workplace involving co-workers.” Id.
On May 19, 2005, Campbell, with counsel, submitted an oral reply to Director
Burkhardt, who was responsible for deciding whether to adopt Division Chief Harwig’s
proposal to suspend Campbell from his employment. Campbell did not dispute that his
security clearance was suspended for the reasons articulated in Harwig’s memorandum.
We refer herein to Campbell’s access to classified information and his security
clearance collectively as his “security clearance.”
5
10
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Rather, Campbell argued that he should be reassigned to unclassified duties while the
Central Clearance Facility reviewed his security clearance. Nonetheless, based on the
reasons that Campbell’s security clearance was suspended, Burkhardt determined that
Campbell’s actions were distinguishable from other Engineer Research and Development
Center employees who had lost access to classified information but were reassigned to
unclassified duties.
Amplifying Harwig’s statement of the reasons that Campbell’s
security clearance was suspended, Burkhardt explained:
1.
“On 14 March 05, [Campbell] entered a restricted facility, namely the
[Topographic Engineering Center], wearing a recording microphone
on [his] wrist that was connected via a wire through [his] sleeve to a
micro cassette recorder in [his] pants pocket. On that date, [he]
secretly recorded conversations inside the restricted facility.” See J.A.
229.
2.
“On 14 March 05, [Campbell] entered a restricted facility, namely the
[Topographic Engineering Center], bringing with [him] a digital voice
recorder, and a cell phone camera with capabilities for both still
images and video.” Id. at 230.
3.
“On 14 March 05, [Campbell] admitted to an FBI Special Agent that
[he] ‘had recorded another conversation with [his] supervisors.’
[Campbell’s] supervisors [reported] that that conversation took place
on 11 March 2005 in room 506, which is a classified area. They [also
reported] that [Campbell] remained in room 506 after that
conversation while another conversation took place in which
classified material was discussed. . . . Because [Campbell] wore a
wire on two separate dates, [he] intentionally disregarded national
security regulations and policies, and showed a willingness to
compromise classified information for the sake of [his] own, personal
interests.” Id. (emphasis added).
4.
“Instead of providing [his] current [legal] residence, [Campbell]
provided a post office box number at a commercial mail facility.” Id.
5.
“[Campbell] created a disturbance in the workplace involving
coworkers. Specifically, [Campbell] boasted to co-workers that [he
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was] a person who sought revenge and knew how to make bombs.
[Campbell’s] boast created fear and apprehension on the part of [his]
co-workers, and such fear and apprehension stifles open and timely
discussion and reporting of suspicious or unusual activity, which
could have a significant impact on the mission and on National
Security.” Id.
In short, Burkhardt determined that Campbell’s actions resulting in the suspension
of his security clearance were distinguishable from those of the Engineer Research and
Development Center employees who were reassigned to unclassified duties because
Campbell had taken “overt action that could have compromised classified information.”
See J.A. 229. Namely, Campbell brought recording and photographic devices to the
Topographic Engineering Center and attempted to record conversations therein,
misrepresented his legal residence, and made his coworkers feel unsafe. Burkhardt further
related that “[t]he Commander of the [Engineer Research and Development Center] ha[d]
never recommended that any clearance be revoked, until [Campbell’s] case. In all cases,
not one of the employees took any overt action that could have compromised classified
information.” Id. For those reasons — that is, the reasons why Campbell’s security
clearance had been suspended — Burkhardt concluded that “[u]nder the circumstances,
[Campbell’s] retention in duty status would be detrimental to national security interests.”
Id. at 231. Burkhardt thus suspended Campbell’s employment with the Army pending
review of his security clearance.
C.
Twelve years later, in early 2017, following lengthy administrative proceedings
before the Department of Defense Office of Hearings and Appeals and the Equal
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Employment Opportunity Commission (the “EEOC”), Campbell commenced this civil
action against the Army. 6 Campbell alleges that the Army discriminated and retaliated
against him when it declined to reassign him to unclassified duties and instead suspended
him pending review of his security clearance. Those allegations underlie the three claims
of his operative complaint, that is, the Title VII claim, the Age claim, and the
Whistleblower claim.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the Army
moved in July 2017 to dismiss Campbell’s operative complaint for lack of subject matter
jurisdiction and for failure to state a claim. Especially pertinent here, the Army argued that
the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988),
deprived the district court of jurisdiction to review any of Campbell’s claims. The Army
also maintained that judicial review of the Whistleblower claim was foreclosed by
Campbell’s failure to exhaust administrative remedies and that he had failed to sufficiently
state claims of discrimination or retaliation.
On September 18, 2017, after argument of the motion to dismiss, the district court
declined to dismiss the Title VII and Age claims, concluding that it was “of the opinion
that [Campbell had] stated claims upon which recovery may be had.” See Campbell v.
Speer, No. 1:17-cv-00568, slip op. at 1 (E.D. Va. Sept. 18, 2017), ECF No. 41. And the
The proceedings before the Department of Defense Office of Hearings and
Appeals resulted in the restoration of Campbell’s security clearance on September 26,
2007. Notwithstanding, on March 19, 2014, an EEOC administrative judge found in favor
of the Army. The EEOC proceedings concluded on December 2, 2016, when the
administrative judge’s decision was affirmed by the Office of Federal Operations.
6
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court dismissed without prejudice the Whistleblower claim because Campbell had “not
exhausted his administrative remedies.” Id. The court did not, however, address the
Army’s argument that, under Egan, it lacked subject matter jurisdiction to review any of
Campbell’s claims.
Thereafter, for reasons explained in its Opinion of April 16, 2018, the district court
awarded summary judgment to the Army on the Title VII and Age claims. Although the
Army again argued that review of any of Campbell’s claims was foreclosed by Egan, the
court failed to address that contention. Reaching the merits of Campbell’s claims, the court
ruled that Campbell could not establish a prima facie case of either sex or age
discrimination, that the Army had “provided legitimate, non-discriminatory reasons for the
suspension decision, and [that Campbell could not] demonstrate that those reasons were
pretextual.” See Campbell v. Speer, No. 1:17-cv-00568, slip op. at 6-7 (E.D. Va. Apr. 16,
2018), ECF No. 65. The court also ruled that Campbell could not establish a prima facie
case of retaliation and that he had “not produced evidence to show that [the Army’s]
justifications [for the suspension were] pretextual.” Id. at 8-9. Subsequently, the court
denied Campbell’s motion to alter or amend judgment. This appeal followed, and we
possess jurisdiction under 28 U.S.C. § 1291. 7
Our jurisdiction extends to the Whistleblower claim even though the district court
dismissed that claim without prejudice. Of course, “[t]he jurisdiction of a court of appeals
is generally limited to the review of final decisions made by the district courts, within the
meaning of 28 U.S.C. § 1291, and to the review of certain interlocutory orders, as provided
for in 28 U.S.C. § 1292.” See Williamson v. Stirling, 912 F.3d 154, 169 (4th Cir. 2018).
And a dismissal without prejudice is generally not an appealable final order. See De’Lonta
v. Johnson, 708 F.3d 520, 523 n.2 (4th Cir. 2013). Nevertheless, when “the grounds of the
(Continued)
7
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II.
We review de novo a district court’s dismissal of a complaint for lack of subject
matter jurisdiction. See Doe v. Meron, 929 F.3d 153, 163 (4th Cir. 2019). We also review
de novo a district court’s award of summary judgment. See United States v. Ancient Coin
Collectors Guild, 899 F.3d 295, 312 (4th Cir. 2018). In this appeal, however, because the
Army maintains that the district court lacked subject matter jurisdiction to review any of
Campbell’s claims, we are obliged to first address the question of jurisdiction. See Sigmon
Coal Co. v. Apfel, 226 F.3d 291, 299 (4th Cir. 2000), aff’d sub nom. Barnhart v. Sigmon
Coal Co., 534 U.S. 438 (2002); Goldsmith v. Mayor & City Council of Balt., 845 F.2d 61,
64 (4th Cir. 1988).
III.
In Department of the Navy v. Egan, a civilian Navy employee with a criminal record
and history of alcohol abuse was denied a security clearance. See 484 U.S. 518, 521-22
(1988). He accordingly became ineligible for his Navy position. Id. After the Merit
Systems Protection Board concluded that it lacked authority to review the Navy’s security
clearance decision, the employee appealed. Id. at 522-25. Emphasizing that classifying
dismissal make clear that no amendment could cure the defects in the plaintiff’s case,” a
dismissal order is “final in fact and therefore appealable.” See Goode v. Cent. Va. Legal
Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015) (internal quotation marks omitted). Here,
Campbell could not cure his failure to exhaust administrative remedies for the
Whistleblower claim by amending his complaint. Accordingly, the Order dismissing the
Whistleblower claim without prejudice is a final appealable decision. We thus possess
jurisdiction to review the court’s dismissal of that claim pursuant to § 1291.
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and controlling access to “information bearing on national security” is the province of the
Executive, the Supreme Court recognized that “the protection of classified information
must be committed to the broad discretion of the agency responsible,” including the “broad
discretion to determine who may have access to it.” Id. at 527, 529. To that end, the Court
reasoned that the “[p]redictive judgment” required of security clearance decisions was best
left to “those with the necessary expertise in protecting classified information.” Id. at 529.
The Court thus agreed that, absent specific authorization from Congress (and there was
none), the Merit Systems Protection Board did not possess the authority to review the
reasons underlying a security clearance decision. Id. at 530.
We have adhered to the view that Egan generally proscribes judicial review of a
security clearance decision “absent a specific mandate from Congress providing
otherwise.” See Hegab v. Long, 716 F.3d 790, 794 (4th Cir. 2013); Reinbold v. Evers, 187
F.3d 348, 357-58 (4th Cir. 1999); Becerra v. Dalton, 94 F.3d 145, 148-49 (4th Cir. 1996);
Guillot v. Garrett, 970 F.2d 1320, 1324-25 (4th Cir. 1992); see also Jamil v. Sec’y, Dep’t
of Def., 910 F.2d 1203, 1205-06 (4th Cir. 1990) (extending Egan to judicial review of
security clearance decisions). And we have never discerned an “unmistakable expression
of purpose by Congress in Title VII [of the Civil Rights Act of 1964]” to subject security
clearance decisions “to judicial scrutiny.” See Becerra, 94 F.3d at 149. 8 But we have not
Several of our sister circuits have also concluded that, under Egan, security
clearance decisions cannot be reviewed for violations of Title VII. See, e.g., Ryan v. Reno,
168 F.3d 520, 523-24 (D.C. Cir. 1999); Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 19697 (9th Cir. 1995).
8
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had occasion to consider whether Congress has provided for judicial review of security
clearance decisions through the Age Discrimination in Employment Act of 1967 (the
“ADEA”) or the Whistleblower Protection Act of 1989 (the “WPA”). As explained below,
Congress has not specifically provided for any such review in either statute.
A.
We first consider the ADEA. And, as it must, our inquiry begins with the plain
language thereof. See Stewart v. Iancu, 912 F.3d 693, 702 (4th Cir. 2019). After all,
Congress’ intent generally will be most apparent “from the words of the statute itself.” See
Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir. 2000), aff’d sub nom. Barnhart v.
Sigmon Coal Co., 534 U.S. 438 (2002). “To determine a statute’s plain meaning, we not
only look to the language itself, but also the specific context in which the language is used,
and the broader context of the statute as a whole.” See Hately v. Watts, 917 F.3d 770, 784
(4th Cir. 2019) (internal quotation marks omitted).
As codified at 29 U.S.C. § 633a, the federal-sector provision of the ADEA prohibits
age discrimination against federal employees. See 29 U.S.C. § 633a. Specifically, § 633a
provides that “[a]ll personnel actions” involving federal employees “who are at least 40
years of age . . . shall be made free from any discrimination based on age.” Id. § 633a(a).
To that end, the EEOC “is authorized to enforce” § 633a(a) “through appropriate remedies,
including reinstatement or hiring of employees with or without backpay.” Id. § 633a(b).
Section 633a further authorizes “[a]ny person aggrieved” to “bring a civil action” for “such
legal or equitable relief as will effectuate the purposes” thereof. Id. § 633a(c). “[B]y its
terms,” § 633a thus “does not confer broad authority” on the federal courts to review
17
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security clearance decisions. See Egan, 484 U.S. at 530. That is, nothing in § 633a plainly
“evidence[s] the kind of unmistakable expression of purpose,” see Becerra, 94 F.3d at 149
(quoting Guillot, 970 F.2d at 1325), that Egan requires in order to subject a security
clearance decision to review by “an outside nonexpert body” such as a federal court, see
Egan, 484 U.S. at 529.
Our confidence that Congress did not provide for judicial review of security
clearance decisions through the ADEA is bolstered by § 633a’s legislative history. Though
we generally “need look no further” if the plain language of the statute is unambiguous,
see Hately, 917 F.3d at 784, mirroring the Supreme Court’s approach in Egan, we will
consider § 633a’s “language along with . . . its legislative history,” see Egan, 484 U.S. at
530 (internal quotation marks omitted). We do so to confirm that Congress did not
otherwise express its intent to subject security clearance decisions to judicial review for
violations of § 633a. See King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (recognizing that
courts must “take care not to undo what [Congress] has done”); In re Sunterra Corp., 361
F.3d 257, 265 (4th Cir. 2004) (recognizing that when plain meaning conflicts with “clearly
expressed” congressional intent, a court may look beyond unambiguous statutory language
(internal quotation marks omitted)).
Like the legislative history for the ADEA’s private-sector provisions, the legislative
history for § 633a indicates that Congress was primarily concerned with “remov[ing]
discriminatory barriers against employment of older workers.” See S. Rep. No. 93-690, at
56 (1974); H.R. Rep. No. 93-913, at 40-41 (1974); see also S. Rep. No. 90-723, at 7 (1967)
(“It is not the purpose of [the ADEA’s private-sector provisions] to require the employment
18
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of anyone, regardless of age, who is not qualified on grounds other than age to perform the
job. . . . The purpose of this legislation, simply stated, is to insure that age, within the limits
prescribed herein, is not a determining factor in a refusal to hire.”); H.R. Rep. No. 90-805,
at 6 (1967) (explaining that the “primary objective” of the ADEA’s private-sector
provisions is “the promotion of employment opportunities for older workers”). Indeed,
Congress appears to have considered § 633a’s applicability to government personnel
actions taken in the interests of national security and declined to disturb the discretion of
the Executive with respect to such actions. When submitting the Conference Report for
the Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974),
which set forth § 633a, the Bill’s sponsor explained:
Questions have been raised about the applicability of the Age Discrimination
provisions to the discretion which now may rest in the heads of certain
executive agencies to terminate an employee in the interests of the national
security of the United States. It was not the intent of the conferees to affect
the exercise of such discretion, other than by barring actions which, in fact,
would be illegal, such as a termination of employment or a refusal to hire
based on age.
See 120 Cong. Rec. 8,764 (1974). 9 We are thus satisfied that there is no “unmistakable
expression of purpose by Congress” in § 633a of the ADEA to authorize judicial review of
security clearance decisions. See Becerra, 94 F.3d at 149; Guillot, 970 F.2d at 1325.
In determining legislative intent, the statements of a bill’s sponsor made during
debate are “entitled to weight.” See Lewis v. United States, 445 U.S. 55, 63 (1980).
9
19
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B.
Next, we turn to the WPA. And, again, our inquiry begins with the plain language
of the statute. See Stewart, 912 F.3d at 702. As codified at 5 U.S.C. § 2302, the WPA
proscribes “personnel action” taken in retaliation for certain whistleblowing activities.
Those activities include (1) the disclosure of information evidencing violations of “any
law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or safety” and (2) “the
exercise of any appeal, complaint, or grievance right granted by any law, rule, or
regulation.” See 5 U.S.C. §§ 2302(b)(8), (9)(A). And § 2302(a)(2)(A) of Title 5 identifies
twelve types of prohibited personnel actions. Only one of those personnel actions — that
is, “any other significant change in duties, responsibilities, or working conditions” — could
conceivably cover a security clearance decision. Id. § 2302(a)(2)(A)(xii).
Arguably, a security clearance decision could result in “a significant change in
duties, responsibilities, or working conditions,” by rendering a federal employee ineligible
for her position. See 5 U.S.C. § 2302(a)(2)(A)(xii). But Egan requires an “unmistakable
expression of purpose by Congress” to subject a security clearance decision to judicial
scrutiny. See Becerra, 94 F.3d at 149; Guillot, 970 F.2d at 1325. We thus cannot conclude
that “by its terms,” the WPA specifically “confer[s] broad authority . . . to review a
security-clearance determination.” See Egan, 484 U.S. at 530; Hesse v. Dep’t of State, 217
F.3d 1372, 1378 (Fed. Cir. 2000) (concluding that § 2302(a)(2)(A)(xii) “falls far short of
constituting a specific statement of congressional intent to authorize review of security
clearance determinations”); see also SKY CABLE, LLC v. DIRECTV, INC., 886 F.3d 375,
20
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388 (4th Cir. 2018) (recognizing that “ejusdem generis instructs that, when general words
follow the enumeration of specific items in a list, the general words apply only to other
items akin to those specifically enumerated” (internal quotation marks omitted)).
Likewise, our examination of the relevant legislative history — in particular that of
the Whistleblower Protection Enhancement Act of 2012 (the “WPEA”), Pub. L. No. 112199, 126 Stat. 1465 (2012) — fortifies our conclusion that Congress did not intend to
provide for judicial review of security clearance decisions through the WPA.
The
legislative history for the WPEA — which strengthened whistleblower protections, in part
by amending the WPA — reflects that Congress explicitly recognized a “critical need” to
extend “the protections for whistleblowers to include those who are retaliated against
through the loss of their security clearances or access to classified information.” See S.
Rep. No. 112-155, at 35-36 (2012) (citing Hesse). And although Congress appears to have
considered providing for review of retaliatory security clearance decisions by both the
Merit Systems Protection Board and the federal courts, the Senate Homeland Security and
Governmental Affairs Committee Report accompanying the 2012 Act explained “that an
Executive Branch process can provide adequate review of security clearance retaliation.”
Id. at 36, 39. For the reasons specified therein, the Act did not “provide for any judicial
review of security clearance retaliation claims” by whistleblowers in the WPA, or
elsewhere. Id. at 40. 10 Therefore, we are similarly satisfied that there is no “unmistakable
The WPEA as enacted did not contain any provision extending whistleblower
protections to security clearance decisions. See Pub. L. No. 112-199, 126 Stat. 1465
(2012); see also Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974) (observing
(Continued)
10
21
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expression of purpose by Congress” in the WPA to subject security clearance decisions to
judicial review. See Becerra, 94 F.3d at 149; Guillot, 970 F.2d at 1325.
C.
Because Title VII, the ADEA, and the WPA do not specifically provide for judicial
review of a security clearance decision, we must evaluate whether any of Campbell’s three
claims against the Army can be assessed without reviewing the suspension of his security
clearance. And we are readily satisfied that they cannot. As a result, Egan deprived the
district court of subject matter jurisdiction in this litigation.
Under Egan, a claim that an adverse employment decision violated a plaintiff’s
statutory rights is unreviewable when it “necessarily depends upon a review of” an
agency’s security clearance decision. See Guillot, 970 F.2d at 1326. In other words, when
review of such a claim requires review of “the very issue[] that the Supreme Court has held
[is] non-reviewable” — namely, a security clearance decision — Egan deprives the federal
courts of subject matter jurisdiction. See Becerra, 94 F.3d at 149.
that the deletion of language from the statute as enacted “strongly militates against a
judgment that Congress intended a result that it expressly declined to enact”). A similar
provision that also committed review of certain agencies’ retaliatory security clearance
decisions to the Executive was later enacted as part of the Intelligence Authorization Act
for Fiscal Year 2014. See Pub. L. No. 113-126, 128 Stat. 1390, 1417-20 (2014).
22
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Campbell argues that Director Burkhardt’s conclusion that Campbell posed a unique
threat to national security and thus could not be reassigned to unclassified duties was
simply a pretext for discrimination and retaliation. 11 But Campbell’s security clearance
was suspended for the same reasons relied on by Burkhardt to reach that conclusion. Under
the burden-shifting framework upon which Campbell’s Title VII and Age claims rely,
determining whether the reasons for suspending Campbell were legitimate and nonpretextual thus requires review of the Army’s security clearance decision. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 807 (1973); Ryan v. Reno, 168 F.3d 520, 523-24
(D.C. Cir. 1999); Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 196-97 (9th Cir. 1995).
Therefore, the district court lacked subject matter jurisdiction with respect to the Title VII
and Age claims. So too with the Whistleblower claim, which requires reviewing the
Army’s security clearance decision to determine whether Campbell was suspended for
engaging in some protected activity rather than for the reasons he provisionally lost his
security clearance. See Bonds v. Leavitt, 629 F.3d 369, 381 (4th Cir. 2011) (setting forth
requirements for claim of WPA retaliation).
Seeking to clear this jurisdictional hurdle, Campbell emphasizes the Supreme
Court’s conclusion in Egan that, under 5 U.S.C. § 7513, the Merit Systems Protection
Board has jurisdiction to review “adverse actions” to determine “whether transfer to a
During oral argument of this appeal, Campbell’s primary assertion was that he
was “entitled to reasonable inferences” that Director Burkhardt’s conclusion that he “posed
a unique threat” and thus could not be reassigned to unclassified duties was “pretextual.”
See Oral Argument at 1:10-1:20, Campbell v. Esper, No. 18-1890 (4th Cir. Dec. 10, 2019),
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.
11
23
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nonsensitive position was feasible.” See Egan, 484 U.S. at 530. Accordingly, Campbell
maintains that jurisdiction to review his claims — each of which concern Director
Burkhardt’s refusal to reassign him to unclassified duties — is unaffected by Egan. He is
mistaken in that regard.
Contrary to Campbell’s assertion, Egan does not “impose on an agency the
obligation, independent of statute or regulation, to transfer employees who lose their
security clearance.” See Jamil, 910 F.2d at 1208. Rather, when an “independent source
for a right to a transfer [to a nonsensitive position] exists,” Egan authorizes a limited review
of whether such a transfer is feasible. Id. at 1208-09; Guillot, 970 F.2d at 1326-27.
Campbell argues that, in this case, such a review is enabled by the prior instances in which
Engineer Research and Development Center employees who lost their access to classified
information were reassigned to unclassified duties. But nothing in this record refutes
Director Burkhardt’s determination that the Engineer Research and Development Center’s
past practice was inapposite to Campbell. As with Burkhardt’s ultimate conclusion that
Campbell’s “retention in duty status would be detrimental to national security interests,”
that determination was predicated on the reasons that Campbell’s security clearance was
suspended. See J.A. 229-31. We do not see how, in these circumstances, the Engineer
Research and Development Center’s past practice provides an “independent source for a
right to a transfer” as contemplated by Egan and our precedents. See Jamil, 910 F.2d at
1208-09; Guillot, 970 F.2d at 1326-27.
24
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***
In sum, Campbell was suspended by the Army pending review of his security
clearance for the very same reasons that he provisionally lost his security clearance.
Because review of any of Campbell’s claims requires review of the suspension of his
security clearance — a review that necessarily “goes to the very heart of the protection of
classified information” — Egan deprived the district court of subject matter jurisdiction to
review each of Campbell’s claims. See Becerra, 94 F.3d at 149. The court thus erred by
failing to dismiss these claims outright for lack of subject matter jurisdiction.
IV.
Pursuant to the foregoing, we vacate the district court’s judgment and remand for
dismissal of the operative complaint for want of subject matter jurisdiction.
VACATED AND REMANDED
25
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RICHARDSON, Circuit Judge, concurring:
I readily join the majority’s fine opinion in full. But I write separately to note the
Supreme Court’s odd use of legislative history in this context. It is hard to fathom how we
might unearth within legislative history ‘a specific mandate from Congress’ or ‘an
unmistakable expression of purpose’ to overcome the presumption against review of
security-clearance decisions made by the executive branch. The “psychoanalysis of
Congress” is a “weird endeavor” in any event, United States v. Public Utilities Commission
of California, 345 U.S. 295, 319 (1953) (Jackson, J., concurring), but particularly so when
the sensitivity and importance of a discretionary executive branch action requires that we
avoid review in the first place. But the Supreme Court has instructed that we try.
Department of the Navy v. Egan, 484 U.S. 518, 530 (1988). And so we do.
26
App. 26
Case 1:17-cv-00568-CMH-TCB Document 75 Filed 06/22/18 Page 1 of 5 PageID# 1236
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WALTON CAMPBELL,
Plaintiff,
v.
Case No. l:17-cv-568-CMH-TCB
MARK ESPER,
Secretary of the Army,
Defendant
DEFENDANT'S MEMORANDUM IN SUPPORT OF UNOPPOSED MOTION
REQUESTING ENTRY OF FINAL JUDGMENT
Pursuant to Federal Rule of Civil Procedure 58(d), Defendant, Mark Esper, Secretary of
the Army (" Army"), respectfully requests that the Court enter final judgment as a separate
document. In support of this request, the Army states as follows:
I.
Federal Rule of Civil Procedure 58(b)(l)(C) provides that the "clerk must ... enter
judgment when ... the court denies all relief."
2.
On March 16, 2018, the Army filed a Motion for Summary Judgment requesting
that the Court dismiss all of Plaintiff's remaining claims. ECF No. 57.
3.
On April 16, 2018, after the Army's Motion for Summary Judgment was fully
briefed, the Court issued an Order and Opinion granting the Army's Motion for Summary
Judgment and dismissed all of Plaintiff's remaining claims. ECF Nos. 65-66.
4.
On May 11, 2018, Plaintiff filed a Motion to Alter or Amend Judgment requesting
that the Court reconsider its grant of the Army's Motion for Summary Judgment. ECF Nos. 67-68.
App. 27
Case 1:17-cv-00568-CMH-TCB Document 75 Filed 06/22/18 Page 2 of 5 PageID# 1237
5.
On June 18, 2018, after Plaintiff's Motion to Alter or Amend Judgment was fully
briefed, the Court issued an Order denying Plaintiff's Motion to Alter or Amend Judgment. ECF
No. 72.
Accordingly, because the Court has denied all relief requested by Plaintiff, the Army
respectfully requests that the Court enter final judgment as a separate document pursuant to Federal
Rule of Civil Procedure 58. Although Plaintiff does not agree with the Court's Order and Opinion
granting the Army's Motion for Summary Judgment, Plaintiff does not oppose the Army's request
that the Court enter judgment as a separate document.
Respectfully submitted,
G. ZACHARY TERWILLIGER
UNITED STATES ATTORNEY
Lauren A. Wetzler,
Chief, Civil Division
By:
Isl Sean D. Jansen
Sean D. Jansen
Assistant U.S. Attorney
Virginia State Bar No. 82252
Counsel for Defendant
Office of the United States Attorney
101 W. Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6689
Email: sean.jansen@usdoj.gov
2
App. 28
Case 1:17-cv-00568-CMH-TCB Document 75 Filed 06/22/18 Page 3 of 5 PageID# 1238
CERTIFICATE OF SERVICE
I hereby certify that on June 21, 2018, I filed the foregoing with the Clerk of Court using
the CM/ECF system, which will send a notification of electronic filing (NEF) to the following
counsel of record:
Sarah Martin, Esq.
Nina Ren, Esq.
Richard R. Renner, Esq.
Kalijarvi, Chuzi & Newman & Fitch, P.C.
818 Connecticut Avenue, N.W., Suite 1000
Washington, D.C. 20006
smartin@kcnlaw.com
nren@kcnlaw.com
rrenner@kcnlaw.com
By:
Isl
Sean D. Jansen
Assistant U.S. Attorney
Virginia State Bar No. 82252
Counsel for Defendant
Office of the United States Attorney
IO 1 W. Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6689
Email: sean.jansen@usdoj.gov
App. 29
Case 1:17-cv-00568-CMH-TCB Document 75 Filed 06/22/18 Page 4 of 5 PageID# 1239
Case 1:17-cv-00568-CMH-TCB Document 73 Filed 06/21/18 Page 1 of 2 PagelD# 1231
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WALTON CAMPBELL,
Plaintiff,
v.
Case No.1:17-cv-568-CMH-TCB
MARK ESPER,
Secretary of the Army,
Defendant
DEFENDANT'S UNOPPOSED MOTION REQUESTING ENTRY OF FINAL
JUDGMENT
Pursuant to Federal Rule of Civil Procedure 58(d), Defendant, Mark Esper, Secretary of
the Army, hereby respectfully files this Motion Requesting Entry of Final Judgment. The grounds
for this motion are fully set forth in the concurrently-filed memorandum in support of the motion.
Respectfully submitted,
G. ZACHARY TERWILLIGER
UNITED STATES ATTORNEY
Lauren A. Wetzler,
Chief, Civil Division
By:
Isl Sean D. Jansen
Sean D. Jansen
Assistant U.S. Attorney
Virginia State Bar No. 82252
Counsel for Defendant
Office of the United States Attorney
101 W. Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6689
Email: sean.jansen@usdoj.gov
App. 30
Case 1:17-cv-00568-CMH-TCB Document 75 Filed 06/22/18 Page 5 of 5 PageID# 1240
Case 1:17-cv-00568-CMH-TCB Document 73 Filed 06/21/18 Page 2 of 2 PagelD# 1232
CERTIFICATE OF SERVICE
I hereby certify that on June 21, 2018, I filed the foregoing with the Clerk of Court using
the CM/ECF system, which will send a notification of electronic filing (NEF) to the following
counsel of record:
Sarah Martin, Esq.
Nina Ren, Esq.
Richard R. Renner, Esq.
Kalijarvi, Chuzi & Newman & Fitch, P.C.
818 Connecticut Avenue, N.W., Suite 1000
Washington, D.C. 20006
smartin@kcnlaw.com
nren@kcnlaw.com
rrenner@kcnlaw.com
By:
Isl
Sean D. Jansen
Assistant U.S. Attorney
Virginia State Bar No. 82252
Counsel for Defendant
Office of the United States Attorney
101 W. Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6689
Email: sean.jansen@usdoj.gov
App. 31
Case 1:17-cv-00568-CMH-TCB Document 76 Filed 06/26/18 Page 1 of 1 PageID# 1241
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Walton Campbell
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
Mark Esper
Secretary of the Army
Defendant.
Civil Action No. 1:17-cv-568 (CMH-TCB)
JUDGMENT
Pursuant to the order of this Court entered on June 22, 2018 and in accordance with
Federal Rules of Civil Procedure 58, JUDGMENT is hereby entered in favor of the defendant
Mark Esper, Secretary of the Army and against the Plaintiff, Walton Campbell.
FERNANDO GALINDO, CLERK OF COURT
By:
/s/
Anitra Chastine
Deputy Clerk
Dated: June 26, 2018
Alexandria, Virginia
App. 32
Case 1:17-cv-00568-CMH-TCB Document 72 Filed 06/18/18 Page 1 of 1 PageID# 1230
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WALTON CAMPBELL ,
Plaintiff,
)
)
)
)
)
)
) Civil Action No . 1:17-cv- 00568
v.
MARK ESPER,
Secretary of the Army
Defendant.
)
)
)
)
)
)
)
ORDER
THIS MATTER comes before the Court on Pla i ntiff ' s Motion to
Alter or Amend this Cou rt ' s Apr il 16, 2018 Order . The Court is
of the opinion that its previous Order was correct for the
reasons stated . Accordingly , it is hereby
ORDERED that Plaintiff's Motion to Alter or Amend Judgment
is DENIED .
CLAUDE M. HILTON
UNITED STATES DISTR I CT JUDGE
Al exandria , Virginia
June l}l_ , 2018
App. 33
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 1 of 9 PageID# 1178
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
)
WALTON CAMPBELL ,
)
)
)
Plaintiff ,
)
)
v.
) Civi l Action No . l : 17 - cv-00568
)
)
MARK ESPER,
Secretary of the Army
)
)
)
Defe ndant .
)
)
Memorandum Opinion
THIS MATTER comes
before
the Court on
Defendan t ' s
Motion
for Summary Judgment .
This suit arises out of the 852 -day unpaid suspension that
Plaintiff
Walton
s uspension ,
was
Engineer 's
Engineer
"ERDC" ) .
as a
the
TEC
because
Research
scientist
(the " TEC" )
laboratory
the
information ,
57
years - old
at
placed on by h is employer,
Beginning in 2004 ,
physical
Center
Campbell ,
TEC
at
and
of
the Army Corps
Center
the
of
(the
Plaintiff was employed by the ERDC
the
ERDC ' s
is
designated
works
almost
was
time
Development
Topographic Engineering
laboratory in Alexandria ,
?laintiff
the
as
a
restricted
exclusively
required
to
Virginia.
with
maintain
a
Because
area ,
classif i ed
Top
Secret
clearance and access to Sensitive Compartmented Information .
App. 34
and
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 2 of 9 PageID# 1179
Beginn ing i n Februar y 200 5,
Mr .
Harwig ,
began
to
recei ve
Pla intiff ' s
coworkers ,
Plaintiff ' s
behavior .
Ms .
On
Mr .
Harwig
one
behavior
t roubling
Ke nnan
whom Plaintiff alleges to b e
to
Pla in ti ff 's dir ect supervisor ,
r e ports
from
and
Ms.
Hubbard ,
instance
th e
t wo
whi c h
"sounded
to
Mr .
of
regarding
women ,
l ess t ha n 40 - years - old ,
two
both
of
described
Harwig
like
sta lk ing . " When Plaintiff 's a c cess to a particular part of the
TEC fac ilit y was remo ved a nd hi s interact i ons with t he t wo women
mi nimized
f ol lowi ng
t hi s
supe r visor
a nd o t he r s
cowo rkers .
Mr .
Pl aint iff
about the coworkers '
Harwi g
ul t ima t e l y
complaine d
to
his
professional ism a nd
the
a g a inst
allega t ions
severa l
making
stabi lit y ,
ment a l
report ,
concluded
t ha t
Plaintiff ' s
rep o rt ed t hat
she
felt
a llegations were unfounded .
Following this ,
around Plaintiff ,
Ms.
Kennan
unsafe
and that " Plai nt iff had previously commented
that he was a person who soug ht r e ve nge ,
kn e w how to make bombs ,
and that he had put chemica l s
in a
f ormer coworker ' s drink to
g i ve
Ms.
Ke nna n
that
person
diarrhea . "
also
alleged
that
Plai n tiff had attempted to fol low h er home.
Plaintiff
was
pla c e d
a nd i n for med th at he
and
Ms.
Hubbard .
under
i nvestiga ti on
should avoi d al l
Pl aint iff
alleges
f or
mi sconduct ,
contact wi th Ms .
t ha t
he
reported
Kennan
to
Mr .
Ha r wig that he fel t
t hreatened by Ms . Kennan and Ms . Hubbard d ue
to
fals e
t heir apparent
accu sations
2
App. 35
aga i ns t
him ,
and
that
he
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 3 of 9 PageID# 1180
feared for his safety around Ms .
Kenna n beca u se she had stated
on multiple occasions that she was "a former Marine ,
and a
good shot . "
According to Plaintiff ,
Mr .
a marksman
Harwig dismissed
Plaintiff ' s concerns without investigation .
Soon after this ,
Plaintiff was detained and interviewed by
Fort Bel voir Police for allegedly viola t ing a
that Ms .
Kennan had taken out against him .
restraining order
The officers
found
th at Plaintiff was wearing a recording device with a microphone
wired through his shirt sleeve , and he was a lso in possession of
a
capabi lit i es .
which
he
with
video
Plaintiff was then int ervi ewed by the FBI ,
d uring
admitted
a nd
recorder
voice
digital
to wearing
the mic rop h one
r ecord conversations with his coworkers ,
prior occasion
he
p ho ne
camera
had attempte d
to
in
an
attempt
to
and admitted that on a
reco rd a
conversation
with
his supervisors .
Following
materials
these
was
suspended .
preliminary
decision
suspension,
without
review ,
but
events ,
offered
Plaintiff ' s
TEC
Director
to
place
pay ,
pending
Plaintiff
access
Mr .
an
19 ,
between
2005 ,
attorney ,
device
Plainr.iff ,
Plaintiff did
into
a
not
restricted
3
App. 36
of
At a
that
on
two
he
made
a
administrative
opportunity
Burkhardt,
dispute
facili ty
on
outcome
allegations being made against him first .
classified
Burkhardt
Plaintiff
the
to
his
to
security
rebut
the
meeting on May
and
Plaintiff's
wore
a
previous
recording
occasions ,
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 4 of 9 PageID# 1181
possessed numerous
recording devices
in a
restricted facility ,
or that he commented about having the ability to make bombs or
about
how
meeting ,
he
was
a
person
who
took
revenge .
At
that
same
Plaintiff ' s attorney warned Mr . Burkhardt that the Army
could face an EEO action if Plaintiff was suspended without pay .
After the May 1 9 meet i ng , Mr. Burkhardt officially dec i ded
to
suspend
security
paid,
Plaintiff
clearance ,
duty
without
pay
d e termining
status
would
be
pending
that
adjudication
retaining
detrimental
to
of
Plaintiff
national
his
in
a
security
inte rests . Mr . Burkhardt made th is dec ision after speaking with
Plaintiff ' s
colleagues
regar ding
the
situation
and
reviewing
documents pertinent to the allegations . Plaintiff remained on an
for
suspension
unpaid
indefinite ,
from
May
days
while
th e
27 ,
2005 ,
until
his
investigation
was
clearance was
restored on September 26 ,
2007 .
Plaintiff
found
stalking
was
pending ,
852
not
guilty of
the
In the
charges
defending himself in a
jury trial in Fairfax County .
also
EEO
filed
a
formal
ultimately res ulted in a
March
9,
Off ice
of
2014 .
complaint
this
after
Plaint i ff
time,
which
decision finding no discrimination on
Plaint iff appealed
Federal
d u ring
inte rim,
Operations ,
the decision
which
affirmed
to
the
the
EEOC ' s
decision
on
December 2 , 2016 .
Plaintiff
Defendant
filed
engaged
in
suit on
February 28 ,
unlawful
age
4
App. 37
and
2017 ,
sex
alleging
that
discrimination
in
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 5 of 9 PageID# 1182
violation
of
Title
VI I
Di s c r imination
in
Plaintiff
u n paid
on
unclassified
of
the
Civil
Employment
work
Act
suspension
for
him
Ri ght s
( the
rat her
during
the
Ac t
and
the
"ADEA" )
by
placing
tha n
providing
a djudica tion
Age
paici
of
his
security c l earance .
He also alleged r etalia tion in violation of
Title VII
and
the
ADEA due
co ns ider
and
investigate
di s crimination
that
to
Defendant 's allege d
Pla i n tif f ' s
Plaintiff
made
claims
before
of
he
refusal
a ge
was
to
and
se x
placed
on
inde finite suspension without pa y .
Title VII provides that " [a]ll pe rsonn el act ions " affecting
fe de ral
e mp loyees
like
Plaintiff "sha ll be ma de fr ee
discrimi nat i on b ased o n
se x ."
42
Fu rth ermore ,
th at
" [a] 11
the
ADEA
p rovides
a f fecti ng emp l oyee s "who are a t
e x e c utive
agencies
U. S . C .
§
from a ny
20 00e-1 6 (a ) .
p ersonnel
action s"
least 40 years of ag e
in
shall
be
made
fre e
f r om
any
discr i minati o n ba s ed on age ." 2 9 U.S . C . § 633a(a) . Unde r e ithe r
statute ,
where a plaintiff does not present
di scrimination ,
Douglas
Gre e n ,
mu s t
evide nce of
he must prove a vio lat ion t h r ough t he McDonnell
burden - shifting
411 U. S . 7 92
first
direct
framework .
McDonnel l
Douglas
( 197 3) . Under t hi s frame work ,
establish a
prima
facie
case
Corp .
v.
t he plaintiff
of di scr imination
or
ret a liation . Foster v . Univ . of Md . Eastern Shor e, 787 F . 3d 243 ,
250
(4th Cir .
produce
a
2015) . The burde n then s hift s to th e employer to
legitimate ,
non - discriminatory
5
App. 38
re ason
for
the
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 6 of 9 PageID# 1183
decision .
Id .
employer ' s
Finally ,
stated
the
plaintiff
reason
is
must
merely
establish
a
pretext .
that
the
Reeves
v.
Sanderson Plumbing Prods ., Inc ., 530 U. S. 133 , 142 (2000) .
Here ,
Plaintiff
cannot
establish
either age or sex discrimination .
case of discrimination ,
member
of
a
(2)
the
time
level
action ,
plaintiff
was
performing
at
a
legitimate
expectations ,
and
(4)
outside
the
favorably .
at
plaintiff's
See Coleman v .
case
facie
of
To demonstrate a prima facie
class,
employment
of
prima
a plaintiff must show that
protected
(3)
a
he
suffered
of the
he is a
an
adverse
adverse action
that
met
similarly
protected
( 1)
his
employer ' s
situated
class
were
t he
employees
treated
Ma ryland Court of Appeals ,
62 6
more
F . 3d
187 , 190 (4th Cir . 2010) .
Although "plaintiffs are not required as a matter of law to
point
to
a
similarly
situated
discrimination claim ," where a
to establish his prima
facie
comparator
to
succeed
on
a
plaintiff relies on comparators
claim,
those
comparators must be
" similar in all relevant respects," including " evidence that the
employees dealt with the
same
conduct
circumstances
employer ' s
without
that
same superviso r"
such
would
and " engaged i n the
or
differ e ntiating
disting uish
their
mitigating
conduct
treatment of them for it . " Haywood v .
Locke ,
or
the
387
F.
App ' x 355 , 359 (4th Cir . 2010).
Plaintiff
attempts
identify
to
6
App. 39
similarly
situated
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 7 of 9 PageID# 1184
comparators
by
pointing
clearances had not ye t
out
th at
" all
bee n approved,
other
employees
whose
or had been suspended or
revo ked ,
had remai ned i n pa id duty status and assigned duties
that
not
di d
require
a
security
clearance . "
However ,
of
the
seventeen other ERDC employees who lost or we re denied access to
classified info rmation ,
none are similarly situated .
decisio n maker i n Pl aintiff ' s case
(Mr .
Burkhardt)
decis ion ma ker in any of the other cases .
o the r
se venteen
info rma tion
employees
suspended
for
had
even
their
remotely
none of the
to
similar
the
was not the
Second ,
access
First ,
classified
reasons ,
and
thu s d id not engage in the "same conduct " as Plaintiff .
Furthermore ,
facie
claim
if
Plaintiff
disparate
treatment ,
and
Plaintiff
could
cannot
establish
Defendant
reasons
non - discriminatory
legitimate ,
decision ,
of
even
demonstrate
has
that
prima
provided
suspension
the
for
a
those
reasons
were pretextual . Mr . Burkhardt explained in his decision letter
tha t
Plaintiff
was
placed
on
retaining
Plaintiff
in
paid ,
nationa l
security
interests
administrative
leave
duty
status
posed
due
to
multiple
the
a
because
danger
to
concerns
regarding Plaintiff ' s alleged behavior . These justifications are
supported by the evidence , and there is no evidence to show that
they
are
merely
pre textual .
Thus ,
Plaintiff ' s
discrimination
claim fails as a matter of law .
Plaintiff ' s
retaliation
claim also
7
App. 40
fails
as
a
matter
of
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 8 of 9 PageID# 1185
law .
Once
again ,
framework,
u nder
him,
and
Douglas
burden-shifting
establish a prima facie case of
Plaintiff must show that:
protected activity,
agains t
McDonnell
Plaintiff must firs t
retaliation. To do so,
in a
the
(3)
( 2)
Defe ndant
there
was
a
( 1)
he engaged
took an adverse action
causal
link
betwee n
the
protected activity and t he adverse action. E.E.O.C. v. Navy Fed.
Credi t
Union ,
causation,
424
a
reprisal was
F.3d 397,
p laintiff
405-06
claiming
(4th Cir .
r etaliation
2005).
To
prove
must
show
that
the "but for" cause of the personnel action.
Sw .
Med.
Ctr .
v.
Nassar,
133 S .
Ct.
2517,
See
Univ.
of Tex.
2528
(2013)
(applying "but for" standard of causation fo r reta liat ion
cla im under Title VII ); Gross v. FBL Fin . Servs ., Inc., 557 U.S.
167 , 176-77
(2009)
(applying same standard for retalia tion claim
under t he ADEA) .
Plaintiff cannot prove a prima
facie
case of
retaliation
because he cannot establish that "but fo r" a r e tal iatory motive,
he
would
not
have
been
suspended
without
pay.
Plaintiff's
alleged protected activity was his complaint at the May 19, 2005
meeting that he was subjected to disparate treatment and that he
would
bring
an
EEO
action
a
paid
position
Plaintiff
in
Howeve r ,
prior
to
this
if
Mr .
Burkhardt
pe rforming
meeting,
Mr.
did
not
r e tain
non-classified
Burkhardt
had
work .
already
pre limina rily determined that he was going to suspend Plaintiff
without
pay
unless
Plaintiff
satisfactorily
8
App. 41
rebutted
t he
Case 1:17-cv-00568-CMH-TCB Document 65 Filed 04/16/18 Page 9 of 9 PageID# 1186
allegations made against him . Plaintiff d i d not do so when given
the
opportunity .
Thus ,
decision
to
suspend
protected
activity ,
Mr .
Burkhardt
Plaintiff
and
so
befo r e
Plaintiff
ha d
a lread y
Pla in tiff
cannot
made
the
engaged
in
s how
that
his
protected activity was the " but - for u cause of his suspension .
Furthermore ,
as discussed supra ,
and
non-discriminatory
l egitima te ,
justifications
for
the
Defendant has put forward
non - retaliatory
suspens i on deci sio n which are
supported
by the evidence , and Plaintiff ha s not p r oduced evidence to show
th at those justifications are pretext ual . Therefore ,
Pla intiff ' s
retalia tion claim fails as a matter of law .
For th e fo regoing reasons ,
is
entitled
to
summar y
this Court finds t hat Defendant
judgment.
An
appropriate
order
sha ll
issue.
L6;,<~ ~ .- y / - ~
CLAUDE M. HI LTON
UNITED STATES DISTRICT JUDGE
Alexandria , Virginia
April
2018
!fo---,
9
App. 42
Case 1:17-cv-00568-CMH-TCB Document 66 Filed 04/16/18 Page 1 of 1 PageID# 1187
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
WALTON CAMPBELL ,
Plaintiff ,
Civil Action No . l : 17 - cv-00 5 68
v.
MARK ES PER,
Secretary of the Army
Defendant .
ORDER
I n accordance with the accompanyi n g Memorandum Opi n ion , it
is h ereby
ORDERED t h at Defendant's Mo ti o n for Summary J udgment is
GRANTED , a n d this case is d i smissed .
Ceo,L<~ hz - # ~
CLAUDE M. HI LTON
UN IT ED STATES DI STRI CT JUDGE
Alexandria , Virginia
April __/_42_ , 20 18
App. 43
Case 1:17-cv-00568-CMH-TCB Document 41 Filed 09/18/17 Page 1 of 1 PageID# 428
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Ale xandria Division
)
WALTON CAMPBELL ,
)
)
Plain ti ff,
)
)
)
) Civil Action No . 1 : 17 - cv-00 56 8
v.
)
)
ROBERT M. SPEER,
)
Defendant.
)
)
)
ORDER
THIS MATT ER comes b efore the Court on Defe ndant ' s Motio n to
Dismiss for Lack of J u risdiction and Motion for J udgment o n t he
Plead ings .
With
regard
to
Counts
I
and
II
of
the
Amended
Complaint , the Court is of the opin i on that Plaintiff h as s tated
claims upon which recovery may be h ad . With regard to Count III ,
the Court i s of th e opinion that Plainti ff has not e xhaus t ed his
admi nistra ti ve r emedies. Accordingly , it is hereby
ORDERED that Plaintiff ' s Motion to Dismiss is DENIED as to
Counts I
and II and GRANTED a s
to Count III ,
and Count III is
dismissed without prejudice .
~~,~~
Al exandria , Virgini a
September .l!d..__, 2017
CLAUDE M. HILTON
UNITED STATES DISTRICT JUDGE
App. 44
USCA4 Appeal: 18-1890
Doc: 49
Filed: 05/04/2020
Pg: 1 of 1
FILED: May 4, 2020
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 18-1890
(1:17-cv-00568-CMH-TCB)
___________________
WALTON CAMPBELL
Plaintiff - Appellant
v.
RYAN D. MCCARTHY, Secretary of the Army
Defendant - Appellee
___________________
ORDER
___________________
The court denies the petition for rehearing and rehearing en banc. No judge
requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.
Entered at the direction of the panel: Judge King, Judge Agee, and Judge
Richardson.
For the Court
/s/ Patricia S. Connor, Clerk
App. 45
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON FIELD OFFICE
131 M Street, N.E., Suite 4NW02F
Washington, D.C. 20507
Walton B. Campbell,
Complainant,
V.
John McHugh,
Secretary,
Department Of Army,
Agency.
------------------
) EEOC No. 570-2006-00375X
) Agency No. ACEERDC05JUL0922
)
)
)
)
)
)
)
)
)
)
Date: March 19, 2014
ORDER ENTERING JUDGMENT
For the reasons set forth in the enclosed Decision judgment in the above-captioned matter
is hereby entered. A Notice to the Parties explaining their appeal rights is attached to the
Decision.
For timeliness purposes it shall be presumed that the parties received the foregoing
Decision within five (5) business days after the date they were sent via first class mail.
It is so ORDERED.
App. 46
To:
Walton B. Campbell
6036 Richmond Highway
#211
Alexandria, VA 22303
June D.W. Kalijarvi, Esq.
Kalij arvi, Chuzi & Newman, PC
1901 L Street, NW, Ste. 610
WDC 20036
Timothy Felker, Esq.
Servicing Labor Counsel
U.S. Army Engineer Research & Development Center
CEERD-OC-A, Bldg. 2592
7701 Telegraph Road
Alexandria, VA 22315-3864
Linda S. Wilkinson, EEO Mgr.
ERDC-Army Corps of Engineers
Waterway Experiment Station
3 909 Halls Ferry Road
Vicksburg, MS 39180-6199
App. 47
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington Field Office
131 M Street, N.E., Suite 04NW
Washington, D.C. 20507
Walton B. Campbell,
Complainant,
) EEOC No. 570-2006-00375X
) Agency No. ACEERDC05JUL0922
)
)
)
)
)
)
)
)
)
)
Date: March 19, 2014
V.
John McHugh,
Secretary,
Department Of Army,
Agency.
DECISION
This Decision is issued pursuant to 29 C.F.R. § 1614.109(g) (2013). This office issued an
Acknowledgment Order on June 27, 2006. The Agency filed its Motion for Summary Judgment
on November 2, 20006 (Agency Motion). Complainant filed a Response to the Agency's Motion
on December 4, 2006. (Complainant's Motion). The Agency submitted its Reply to
Complainant's Motion on December 18, 2006. (Agency Reply). Complainant submitted
Complainant's Supplemental Clarification on January 2, 2007. (Complainant's Clarification).
The Agency submitted its Response to Complainant's Clarification on January 9, 2007 (Agency
Response). On September 19, 2007, this Judge issued a decision without a hearing in favor of
the Agency.
Complainant timely filed an appeal with the EEOC's Office of Federal Operations (OFO)
arguing that there were genuine issues of fact in dispute regarding the Agency's reasons for
suspending him which were material to whether or not the suspension was discriminatory (or
retaliatory). OFO agreed with Complainant's position and on May 14, 2010, issued a Decision
reversing the AJ's decision (OFO Remand) without a hearing and the Agency's final order, and
remanding the matter to the Washington Field Office Hearings Unit for the holding of a hearing.
A hearing was held before this Administrative Judge on December 3, 4, and 5, 2012.
Eleven witnesses testified, including two called by Complainant, and nine called by both parties.
One witness, R. Paul Harwig, the former Division Director of the Operations Division at the
Agency had retired by the time of the hearing and failed to appear although called by both
parties. His deposition was introduced pursuant to F. R. Civ. P. 32(a). CE Complainant's Exhibit
(CE) 33. At the conclusion of the hearing the AJ directed the parties to file Closing Briefs on the
-1-
App. 48
substantive issue of discrimination and retaliation and liability, and on the issue of the relevance
of the Defense Office of Hearings and Appeals (DOHA) Recommended Decision and the
Personnel Security Appeals Board (PSAB) decision reinstating Complainant's clearance. The AJ
bifurcated the liability phase of the hearing and the damages phase. On January 13, 2014, an
Order for Damages Evidence was sent to the parties. 1
ISSUE
The issue is whether the Agency discriminated against Complainant because of his of sex
(male), age (57, D.O.B: 6/30/47) and/or retaliation/reprisal in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), 42 USC § 2000e-16, and the Age Discrimination in Employment
Act (ADEA), 29 USC 633a when on May 27, 2005, Complainant was indefinitely suspended
without pay pending determination of his secret security clearance.2
Report of Investigation (ROI) at C-2.
FACTUAL BACKGROUND
The Complainant is Dr. Walton Campbell. The Agency is the Department of the Army,
Army Corps of Engineers, Engineer Research and Development Center (ERDC), Topographic
Engineering Center (TEC), Operations Division. Complainant began his employment with the
Agency on July 27, 2004, as a DB-1301-04 (GS-14 equivalent) Physical Scientist assigned to the
Engineer Research and Development Center (ERDC), Topographic Engineering Center (TEC),
Operations Division (Agency). HT at 47-48.
After Complainant entered on duty at the Agency it assigned him to the Information
Services Branch, Source Acquisition Team (SAT) within the Operations Division, TEC, ERDC.
Mary Pat Santoro (female) was the Branch Chief and Theresa Rasmussen (female) was the Team
Leader. HT at 20. The other members of the SAT were two younger white females, Tish Kennan
and Alana Hubbard, Marty Downing (male), and Loretta Williams (black female). HT at 51-52.
Complainant, Ms. Kennan, Ms. Hubbard and Mr. Downing were all assigned to the SAT doing
similar work although Ms. Kennan, Ms. Hubbard and Mr. Downing had TS/SCI clearances and
worked in the Agency's SCIF to which Complainant was not allowed access. HT at 51-52;
368-370; 414-415, 418; ROI FFC Tr. at 67-68. The Division Chief of the Operations Division
was R. Paul Harwig (male, age: 48, D.O.B.: 9/1/57); the Director of the TEC was Robert
1
That Order indicated that I believed Complainant to be the prevailing party in this case and required the
parties to submit motions regarding the appropriate damages for this case. However, after a careful and arduous
review of the hearings transcript, all of the evidence therein and all of the hearings record, I find that determination
to have been premature. As such, the Agency need not reply.
2
There is also an issue regarding the admissibility, relevance and governance ofDOHA's Recommended
Decision (CE 35) and the PSAB Decision (CE 36) restoring Complainant's security clearance (TS/SCI), which was
originally raised by Complainant in his Prehearing brief and reasserted in his Post Hearing brief. This issue will be
addressed in the Analysis section of this Decision.
-2-
App. 49
Burkhardt (male, age: 57, D.O.B.: 10/26/48); and the Commanding Officer of the ERDC was
Colonel James Rowan. ROI Exhibit (Ex.) F-1 at 57; 3 HT at 253.
Personnel employed by the Agency in the Operations Division, TEC, ERDC are required
to have security clearances which are called "Top Secret/Sensitive Compartmented Information
(TS/SCI)." ROI Ex. F-15 at 128. Such personnel are subject to the provisions of Army Regulation (AR) 380-67 "Personnel Security Program." ROI Ex. F-15. When new personnel entered on
duty in the Operations Division and TEC who did not have an appropriate clearance, the Agency
applied for them to be granted a TS/SCI clearance. HT at 415; HT at 55-56; CE 33 at 18. In the
interim the new employees were assigned unclassified duties to work on in an unclassifred work
space. Id. Employees of the Operations Division with TS/SCI clearances worked in a separate
restricted facility called a SCIF (Secure Compartmentalized Intelligence Facility). HT at 370.
From July 27, 2004, until February 9, 2005, Complainant was assigned unclassified duties, that is, duties which did not require a security clearance, pending the Agency issuing him a
TS/SCI security clearance, and he worked in an unclassified work space that did not require a
clearance. HT at 48-49; 216; 369; ROI FFC Tr. at 17-18, 32. In September, 2004, Complainant
received an interim Secret clearance; however, he continued to perform unclassified duties which
did not require a clearance and he continued to work in an unclassified space. HT at 48-50;
214-215.
On February 9, 2005, Complainant was granted a TS/SCI clearance. AE 1. Enclosures
(Encl.) 2,3. At that point Complainant was aqowed access to the SCIF and Ms. Hubbard began to
train Complainant in the SCIF. HT at 368-370; 418. On February 22, 2005, Complainant was
transferred to the Current Operations Team, Terrain Analysis Branch, within the Operations
Division, TEC, ERDC. HT at 19; 67-68. Charles Lopez was the Branch Chief of the Terrain
Analysis Branch and Jeffrey Popp was the Team Leader of the Current Operations Team. Id.
After Complainant was transferred to Mr. Lopez's Branch his assignments and duties did not
require access to classified information. ROI Ex. F-8 at 84-85.
Between July 27, 2004, and March 7, 2005, Complainant's supervisors did not witness
any performance or conduct by Complainant which caused them any concerns nor did they
contemporaneously document any concerns and/or consider Complainant a threat to national
security. HT at 30-32; 199, 210-211, 216,217; 416-417, 421. Complainant's relationships with
his coworkers and superiors were collegial and cordial and no one expressed any concerns about
his conduct in the workplace. HT at 53-54, 118. All his supervisors in both branches and on both
teams observed Complainant to be a good, professional, thorough and efficient worker ("a great
3
The reference to ROI page numbers refers to the handwritten page numbers at the bottom center of the
pages in the ROI. The reference to ROI Fact Finding Conference Transcript (ROI FFC Tr.) page numbers refers to
the printed page numbers at the top right comer of the printed transcript. CE refers to Complainant's Exhibits. AE
refers to Agency's Exhibits.
-3-
App. 50
worker") who treated his supervisors and co-workers professionally and with respect. ROI PFC
Tr. at 194; HT at 27, 30-3; 419.
From July 27, 2004, until February 25, 2005, Complainant regularly would have lunch
with several of his co-workers on the SAT, including the two younger females on the Source
Acquisition Team, Tish Kennan and Alana Hubbard, as well as Marty Downing. HT at 53. On
several occasions Ms. Kennan would remark during these gatherings that she was a former
Marine, a good marksman and that she knew how to shoot. HT at 59-61; 207. Occasionally
during this period (July 27, 2004, - February 25, 2005) Ms. Hubbard and Ms. Kennan discussed
with each other, Mr. Downing and their supervisors that they would prefer not to have
Complainant accompany them to lunch but they did not want to tell him so for fear of hurting his
feelings. HT at 398-399; 418; AE 1 Encls. 10, 16.
They also alleged Complainant followed Ms. Kennan around the work site. HT at
113-116; 212-213; 406. At no time during this time period did Ms. Kennan nor Ms. Hubbard
advise anyone that they were afraid of Complainant or feared for their safety and no one observed
Complainant behaving in a threatening manner toward anyone or behaving in a manner which
caused anyone concern. HT at 30; 199, 210-211; 401-402; 416-417; ROI PFC Tr. at 138. Neither
Ms. Kennan nor Ms. Hubbard ever told Complainant that they did not want him to socialize with
them or that they were afraid of him; that he was sexually harassing, bothering/distracting them,
interfering with their working or that he was inappropriately staring at Ms. Kennan. HT at 57-58.
Complainant was transferred within the Operations Division from Ms. Santoro's branch
and Ms. Rasmussen's team to Mr. Lopez's branch and Mr. Popp's team effective February 22,
2005. AE 21. After his transfer to Mr. Popp's team and Mr. Lopez's branch Complainant was
assigned unclassified duties and he worked in unclassified space "search[ing] the open literature
for information on population densities of Iranian cities." HT at 67-68; 19-20.
On February 25, 2005, Complainant went to the SCIF in which Ms. Kerman and Ms.
Hubbard were working and watched the program on which they were working. HT at 70-73.
Shortly before Complainant, Ms. Hubbard and Ms. Kennan left the SCIF to go to lunch, Mr.
Harwig, Division Director, Operations Division, opened the door to the SCIF and noticed
Complainant observing Ms. Kennan and Ms. Hubbard work. Id. at 373-374. Mr. Harwig asked
Complainant what he was doing in the SCIF and Complainant responded "observing." Id. Mr.
Harwig responded "Oh" and left. Id. Ms. Hubbard, Ms. Kennan and Complainant then went to
lunch at a public restaurant. Id. at 74-75.
The two younger women apparently went to the EEO office later that day and then told
Mr. Harwig that Complainant had been "distracting" them and made them feel "uncomfortable."
On February 25, 2005, Mr. Harwig had Complainant's access to the SCIF removed. CE 1. After
February 25, 2005, Complainant had no further interaction with either Ms. Kennan or Ms.
Hubbard. HT at 75-76.
-4-
App. 51
Ms. Kennan and Ms. Hubbard also met contemporaneously with Mr. Popp and told him
Complainant was "interfering" with their work and/or "bothering" or "distracting" them. HT at
22-25, 41. Mr. Popp told them he would speak to Complainant regarding their concerns - which
he did. Id. at 23. Neither Ms. Kennan nor Ms. Hubbard told Mr. Popp that they were in fear of
physical harm from Complainant nor did they claim he was sexually harassing one or both of
them. Id. at 25. Neither Ms. Kennan nor Ms. Hubbard told Mr. Popp that Complainant touched
them or said anything inappropriate to them or that he was too physically close to them, just that
Complainant was interfering with their work. Id. at 41. Ms. Kennan and Ms. Hubbard indicated
to Mr. Popp that they were concerned about their abilities to do their jobs. Id. at 32-33.
On February 28, 2005, Mr. Harwig directed Complainant's Team Leader, Mr. Popp, to
direct Complainant not to distract or interact with either Ms. Kennan or Ms. Hubbard and to
advise Complainant that his access to the SCIF had been removed. CEs 1, 2; HT at 26; AE 21.
On March 1, 2005, Complainant's TS/SCI clearance was suspended by Mr. Harwig and he
continued to be assigned unclassified duties. HT at 21.
On March 7, 2005, the Complainant responded to his supervisors when he sent an e-mail
to his TEC chain of command, the TEC Legal Office, and TEC Security, entitled,
"Whistleblowing on aberrant staff behavior," denying any misconduct and making allegations
against Ms. Hubbard and Ms. Kennan that they were mentally unstable and unprofessional. AE 1
at 11-1 7. One of his allegations was that Tish Kennan was suffering from "malignant uterine
cancer and a hysterectomy" and "being a single parent and having to commute every day across
the Wilson Bridge." Id. at 16. Complainant alleged that these things, as well as some of the
aforementioned comments at lunch gatherings made Ms. Hubbard and Ms. Kennan potential
security risks. Id. at 11- 17; CE 3. According to Complainant, his security concerns arose from
Ms. Kennan's and Ms. Hubbard's alleged loud and public derogatory comments and expressions
of contempt for their supervisors. Id.; HT at 77-80; ROI FFC Tr. at 69-70.
On March 8, 2005, Mr. Harwig directed Complainant's Branch Chief, Mr. Lopez, to
counsel Complainant concerning sexual harassment. ROI FFC Tr. at 60-61, 70-71; ROI Ex. F 14.
Also on March 8, 2005, Mr. Harwig interviewed Ms. Santoro, Ms. Rasmussen and Mr. Downing
concerning Complainant's assertions concerning Ms. Kennan and Ms. Hubbard. CE 4. On March
9, 2005, Mr. Harwig interviewed Ms. Kennan and Ms. Hubbard concerning Complainant's
assertions. CE 4; HT at 380-381. After all of the aforementioned consultations, Mr. Harwig
concluded that Complainant's allegations against Ms. Kennan and Ms. Hubbard were without
merit and need not be further investigated. CEs 5, 7. After Ms. Kerman and Ms. Hubbard learned
on March 9, 2005, about Complainant's March 7, 2005, memorandum raising security concerns
about them, they then told their supervisors they felt threatened by Complainant. HT at 379-3 80.
On March 10, 2005, Mr. Harwig formally suspended Complainant's access to the Agency's
secure facility (SCIF), advised Complainant he was being investigated for misconduct (re his
alleged workplace behaviors) and again ordered Complainant not to interact with Ms. Kennan or
Ms. Hubbard. CEs 4, 5; AE 21.
-5-
App. 52
On March 11, 2005, Mr. Harwig and other Agency managers met with Complainant in
Room 506 of the Cude Building concerning Ms. Kennan's allegations that Complainant had been
"stalking" her and had followed her on her route home at the end of the day two days earlier,
March 9, 2011. CE 7; HT at 94. Mr. Harwig indicated to Complainant that the allegations were
viewed as a potential workplace violence issue and were considered serious. Id. Mr. Harwig
asked Complainant about Ms. Kennan's allegation that he had stalked and/or followed her.
Complainant denied the allegation and asserted that he in turn felt threatened by the two women.
He advised Mr. Harwig that at the time that Kennan alleged that he had followed her, he had
been at the gym with a co-worker (Laura Mulholland) and then had driven home. Mr. Harwig
indicated that he thought there was a discrepancy in Complainant's statement regarding his
address and instructed Mr. Lopez to ask Complainant what his current address was. Id.
Shortly after that meeting Mr. Lopez requested that Complainant provide them with his
home address and telephone number. HT at 85-89. Mr. Lopez gave Complainant a form to
complete with the requested information. ROI FFC Tr. at 184, 195. In his response Complainant
provided the Agency his personal cell phone number and the address to which he was having his
mail sent while he moved his place ofresidence. Id. Ms. Kennan on March 11, 2005, signed a
Fairfax County arrest warrant accusing Complainant of stalking her two days earlier. Id. Mr.
Harwig also asked Ms. Santoro, Ms. Rasmussen, Mr. Downing, Ms. Hubbard and Ms. Kennan to
prepare statements about "incidents" involving Complainant. Id. at 14-15, 46-52.
After Complainant was apprised of Ms. Kennan's and Ms. Hubbard's allegations and after
Mr. Harwig told Complainant that he was being investigated for misconduct, Complainant
indicated that he brought a recording device to his unclassified work area. HT at 90-92; ROI FFC
Tr. at 36-38, 42-43. On March 10, 11 and 14, 2005, Complainant unsuccessfully attempted to
record conversations with his supervisors and/or co-workers. 4 ROI FFC Tr. at 37-38; HT at
322-323.
On March 14, 2005, Complainant was confronted as he arrived at his unclassified work
station, arrested and placed in handcuffs by Agency security personnel based on the warrant
sworn out by Ms. Kennan. ROI Ex, F-8; CE 8. At the time of his arrest it was discovered that he
had a recording device, a cell phone with photographic capability, and a "jogger's FM radio
receiver." Id. After his arrest Complainant was interrogated by two FBI agents who determined
that although they believed Complainant committed a security/procedural violation, he had not
compromised any classified information despite having the recording device and the cell phone
on his person and the FBI would therefore not conduct any further investigation. ROI Ex. F8 at
86-87; CE 8.
4
The events at issue here occurred in and around a building on the Agency's premises next to Fort Belvoir,
Virginia, designated as the Cude Building (Building 2592). A "Notice" is posted outside the Cude Building which
states "Visitors" are "subject to inspection for firearms, explosives and dangerous weapons." ROI Ex. F-12 at 100. A
sign outside Room 506 (an unclassified space) in the Cude Building states that: "Photographing, making notes,
drawings, maps, or graphic representations of this area or its activities is prohibited." ROI Ex. F-11 at 97.
-6-
App. 53
On March 14, 2005, the Agency formally removed Complainant's access to classified information. However, he continued to be assigned duties which did not require a security clearance. ROI Ex. F-8 at 84; HT at 21; 67-68. The Agency continued to assign Complainant
unclassified duties to perform from March 14, 2005, until April 27, 2005, when he was placed on
paid administrative leave until May 27, 2005, when he was placed on indefinite suspension
without pay. Id. at 3. Complainant's supervisors confirmed that between March 14, 2005, and
May 27, 2005, "[complainant's] current duties did not require for him to have access to classified
information" and that he was performing his duties in an exemplary manner, proactively and
thoroughly. Id.; ROI Ex. F-8; ROI FFC Tr. at 193-194.
On March 15, 2005, the County of Fairfax, Virginia charged the Complainant with
"Stalking." AE 2 at 100. That information was a matter of public record and was considered
reportable derogatory information under AR 380-67, paragraph 2-200. ROI at 77, 88; 119-200.
Mr. Burkhardt was aware of this information and under the aforementioned guidance was
allowed to consider it when making his determination to suspend Complainant. Id. Complainant
was subsequently convicted by a Judge on the charge of stalking on June 27, 2005. CE 27 at
225-226. However, Complainant was later found not guilty of the same charge by a jury on
October 19, 2005. CE 29 at 228. All references to this charge were ultimately ordered expunged
from all official records.
On April 27, 2005, the Agency issued Complainant a Notice of Proposed Suspension
(indefinite suspension without pay) pending adjudication of his security clearance. Complainant
and his then-attorney presented an oral reply to the proposed indefinite suspension to the
deciding official, Robert Burkhardt, on May 19, 2005. ROI at 70-72. In that oral reply
Complainant raised the issue that he was being discriminated against with respect to the proposal
to indefinitely suspend him without pay instead of assigning him unclassified duties and/or
placing him in a position which did not require a security clearance. 5 Id. at 71-72. Complainant
emphasized that he believed he was being treated differently from his two young female
co-workers, Ms. Kennan and Ms. Hubbard. On May 27, 2005, the Agency issued a decision
placing Complainant on indefinite suspension without pay, specifically citing in its decision letter
Complainant's allegations that he was being discriminated against, and stating that the Agency
did not believe his EEO claims. ROI Exhibit F-5 at 71-72.
On November 16, 2005, Complainant advised Mr. Harwig and Mr. Lopez of the October
19, 2005, decision finding him not guilty of stalking. However, the Agency decided not to allow
him to return to work at that time pending a final determination regarding his security clearance.
Complainant remained on indefinite suspension without pay until the Agency restored his
clearance effective September 26, 2007, after the DOD Office of Hearings and Appeals (DOHA)
determined that Complainant's security clearance should be restored. The Department of the
5
This oral reply to the Agency's Notice of Proposed Suspension in which he raised the issue of
discriminatory disparate treatment is the basis of Complainant's allegation(s) of reprisal.
-7-
App. 54
Army concurred and restored Complainant's clearance. HT at 119; CE 35, CE 36.
ANALYSIS
Absent direct evidence of discrimination, the complainant in a Title VII case must carry
the initial burden under the statute of establishing a prima facie case of discrimination. The
burden of establishing a prima facie case is not onerous. To establish a prima facie case of
disparate treatment, a Complainant may demonstrate that he/she was treated less favorably than a
similarly situated employee outside his/her protected group. Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). Absent comparative data, Complainant may also establish aprimafacie
case by setting forth sufficient evidence to create an inference of discrimination. Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248,256 (1981), n. 6; McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973).
If Complainant establishes a prima facie case of discrimination, the burden then is on the
Agency to articulate a legitimate, nondiscriminatory reason for its challenged actions. Burdine,
450 U.S. at 252-54; McDonnell Douglas Corp. 411 U.S. at 802. If the Agency does so, the
primafacie inference drops from the case. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507,
510-11 (1993). Complainant then has to prove by a preponderance of the evidence that the
proffered explanation is a pretext for unlawful discrimination. Hicks, 509 U.S. at 511; Burdine,
450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Complainant always retains the
ultimate burden of persuading the trier of fact that the Agency unlawfully discriminated against
him/her. Hicks, 509 U.S. at 511; United States Postal Service Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983).
The McDonnell Douglas burden-shifting framework applies in reprisal cases. See
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318 (D. Mass.
1976), aff'd, 545 F.2d 222 (1st Cir. 1976); McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir.
1984); Downing v. US.P.S., EEOC Appeal No. 01822326 (September 19, 1983). Accordingly, a
reprisal complainant must first establish a prima facie case by a preponderance of the evidence
by showing that (1) the complainant engaged in protected activity; (2) the employer was aware of
the protected activity; (3) the complainant was subsequently subjected to adverse treatment; and
(4) the adverse action followed the protected activity within such a period of time that a
retaliatory motivation may be inferred. See Downing v. US.P.S., EEOC Appeal No. 01822326
(September 19, 1983). Thereafter, the standard McDonnell Douglas burden-shifting framework
requires the Agency to articulate a legitimate, non-discriminatory reason for its actions, which
reason the complainant is then required to show is a pretext for unlawful discrimination by the
Agency. See Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804; Hicks, 509 U.S. at
507-08.
DOHA and PSAB Decisions
In a decision dated September 5, 2007, an Administrative Judge of the Defense Office of
Hearings and Appeals (DOHA) issued a "Recommended Decision" (DOHA Recommendation)
-8-
App. 55
finding that it was consistent with the national interest for complainant's security clearance to be
restored to him. CE 35. The Agency Personnel Security Appeals Board (PSAB) then issued a
final determination accepting and ratifying the Administrative Judge's decision. CE 36.
On October 29, 2012, in his Prehearing Brief and again in his Closing Brief of February
28, 2013, Complainant argued that these decisions should not only be included in the hearings
record, but should also be established as findings of fact as either admissions against interest by a
party opponent pursuant to Rule 80l(d)(2) of the Federal Rules of Evidence (FRE) and/or should
collaterally estop the Agency from challenging them and the EEOC should adopt them as facts in
this proceeding. On November 13, 2012, the Agency submitted its Motion in Opposition
(Opposition Motion) to the arguments made in Complainant Prehearing Brief.
I find the Agency's arguments regarding this issue the more persuasive ones. In this case
I must deny Complainant's motion because it is well established that the EEOC has no
jurisdiction to review this or any security clearance decision of the Department of Defense.
Department of Navy v. Egan, 484 U.S. 518, (Feb. 23, 1988). Complainant is petitioning the
EEOC not only to review the security clearance decision, but to apply that decision in his own
proceeding.
A long line of precedent limits the EEOC's review of cases involving denial (or
revocation) of security clearance. Sifjlett v. National Security Agency, 01910403. 2914/C 10
(1991). However, while the EEOC is not permitted to review the merits of a security clearance
decision, it can review such decisions to determine whether the security considerations were
applied in a non-discriminatory manner. Id., Chat/in v. Department of the Navy, EEOC Request
No. 05900188 (June 1, 1990).
This case concerns a matter of national security. The U.S. Supreme Court has
"recognized the Government's 'compelling interest' in withholding national security
information from unauthorized persons in the course of executive business." Egan, 484 U.S. at
527. The Court also found: "for 'reasons ... too obvious to call for enlarged discussion, [citation
omitted] the protection of classified information must be committed to the broad discretion of the
agency responsible, and this must include broad discretion to determine who has access to it.
Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of
such judgment and to decide whether the agency should have been able to make that necessary
affirmative prediction with confidence." Egan, 484 U.S. at 529.
Additionally, Complainant's motion should be denied because OFO remanded the
subject complaint with the finding that neither the decision to review his security clearance nor
the outcome of the review is at issue here. (OFO Remand). Clearly the DOHA Recommendation
meets this standard of exclusion as an outcome determinative decision after a review of his
security clearance. The Agency correctly pointed out that Granting Complainant's motion would
essentially preclude the Agency from contending that Complainant was a security risk as its
articulated legitimate non-discriminatory reason for indefinitely suspending Complainant without
-9-
App. 56
pay pending security clearance review while using as the basis an Administrative Judge's
decision reviewing Complainant's security clearance. Complainant's request to have the DOHA
Recommendation established as findings of fact is therefore hereby Denied.
FINDINGS
Assuming arguendo that Complainant has met the standards for a prima facie case of
discrimination based on sex, age and reprisal, he has failed to demonstrate by a preponderance of
the evidence that the Agency's articulated nondiscriminatory reasons for not allowing him to
continue working while his security clearance was under review were a pretext for discrimination
on the aforementioned alleged bases in violation of Title VII of the Civil Rights Act of 1964
(Title VII), 42 USC § 2000e-16, and the Age Discrimination in Employment Act (ADEA), 29
USC 633a.
The hearing testimony corroborates the Agency's position that it had legitimate,
nondiscriminatory reasons for revoking his security clearance, e.g., Complainant had made
comments in social settings with coworkers regarding his knowledge of bomb making, he
entered a restricted area of the facility with a concealed recording device and attempted to (or
possibly in fact did make) audio recordings6, he failed to provide an accurate current address
when required to do so and he created through his behaviors a disturbance in the workplace
involving a potential for workplace violence.
Paul Harwig, Complainant's second line supervisor provided more specific articulations
of the aforementioned reasons in his recommendation memorandum to Mr. Burkhardt. He
indicated that Dr. Campbell had shown a history and pattern of behavior that indicated poor
judgment, unreliability and untrustworthiness. 7 He specifically, listed the following:
a. Violations of security regulations or practices whereby he brought recording
devices, both voice and image into a secure facility on multiple occasions.
b. Knowingly misrepresenting his current legal address to his supervisory chain of
command.
6
Complainant's argument at the hearing and the Fact Finding Conference in March of2006 that he only
"attempted" to make recordings is ultimately of no legal significance. ROI, FFC at 78-79. For national security
purposes, an "attempted" recording, versus a "successful" recording is a distinction without a difference. Either
scenario is sufficient to justify the Agency's determination that the Complainant was untrustworthy under AR 3 80-67,
Chapter 2-200 of which refers to "acts of omission or commission that indicate poor judgment, unreliability or
untrustworthiness." ROI at 119, chapter 2-200(i).
7
While not specifically cited in the recommendation memorandum, the incidents and circumstances
surrounding Complainant's alleged stalking behaviors, as well as his subsequent behavior(s) in response to those
allegations, clearly influenced managements perceptions and opinions regarding his judgement, reliability and
trustworthiness. They also comprise an important part of the events that occurred and ultimately lead to the
revocation of Complainant's access to classified materials and his security clearance.
-10-
App. 57
c. Acts of commission that indicate poor judgment, unreliability or
untrustworthiness where he has a history of making veiled threats about his
ability to make explosive devices.
d. Acts of commission that indicate poor judgment, unreliability or
untrustworthiness where he recorded a conversation with his supervisors. AE
1 at pg.I.
In order to prove that he is a victim of discrimination, Complainant had to provide
evidence to prove that Mr. Burkhardt did not believe the evidence that was presented to him
which led him to determine that Complainant was untrustworthy and therefore a threat to
national security. Complainant argues that security clearance procedures were not applied fairly
to him, but his argument fails because he failed to identify a comparator under applicable EEOC
precedent. Specifically, no other employee in the same work unit under the same management
officials had their security access suspended for engaging in the same or similar kind of behavior
as Complainant, e.g., wearing a wire in the TEC Building and no other employee ever admitted
to recording or attempting to record his supervisors on a prior occasion in the TEC Building.
Complainant has failed to provide any evidence showing any irregularity in the procedures used
to suspend his security access. Accordingly, Complainant has failed to provide evidence that
would indicate that the Agency's actions in suspending his security access were motivated by
discriminatory animus.
Responsible management officials reasonably believed that Complainant wore a
hidden recording device in a secure facility on multiple occasions.
The ERDC-V A-SOP, Physical Security, in place at the relevant timeframe of March
2005, establishes the policy that the ERDC Topographic Engineering Center has been designated
a restricted area. ROI at 287. The ERDC-VA-SOP, Physical Security, establishes that TEC work
areas are subject to inspection for security purposes. 8 ROI at 307.
Published Department of the Army security regulation AR 25-2 states that "privately
owned receiving, transmitting, recording, amplification and processing equipment is prohibited
from use within the confines of any area designated or excluded by the commander to be a ...
restricted area." ROI at 230, If 6-5(c). At the time of the Complainant's suspension, TEC had a
policy and a practice that prohibited cell phones with camera capability in the TEC Building. AE
5, at 3. The policy is dated 13 January 2003, and signed by Robert W. Burkhardt, it stated, "Cell
phones equipped with image capturing capability are not authorized within the facility." AE 5 at
3. A Report of the Military Police Criminal Investigation Command (CID) dated March 16,
2005 ("CID Report") confirms that Police found a "cellphone with camera capabilities for both
8
At the time of Complainant's arrest, there was a sign posted on the perimeter fence around the TEC
Building that said, "Restricted Area." HT at 232.
-11-
App. 58
still images and video" on the Complainant inside the TEC building on March 14, 2005. ROI at
84. 9
The CID Report documents that Fairfax County Police searched the Complainant inside
the TEC Building on March 14, 2005, and that Fairfax County Police Officers found in one of
Complainant's pants pockets "a micro cassette recorder with a microphone wired from the
recorder, through his shirt sleeve, to his wrist." ROI at 84. That same CID Report indicates that
the Police also found a "digital voice recorder" in the Complainant's possession. ROI at 84. The
CID Report also states that on March 14, 2005, FBI Special Agent ("SA") Hana played the tape
from the Complainant's tape recorder, and that after the preamble by Mr. Campbell, the next
recording is the voice of the Fairfax County police officers telling Mr. Campbell he was under
arrest. ROI at 86. The CID Report states that on March 14, 2005, SA Hana further told the CID
Agent that Mr. Campbell "stated he had recorded another conversation he had with his
supervisors." ROI at 86. The record reflects that not only did Complainant at the very least,
unsuccessfully attempt to record conversations with his supervisors and/or co-workers, he also
admitted to attempting to do so. HT at 90-92; ROI FFC Tr. at 36-38, 42-43; HT at 322-323.
At the hearing, Mr. Burkhardt testified credibly that Complainant did not deny that he had
worn a hidden recording device in a secure facility. HT at 289. I therefore find that the totality of
the evidence supports the Agency's articulation that it reasonably believed that Complainant
wore a hidden recording device on multiple occasions. This belief, established and supported by
the facts, clearly establishes the Agency's legitimate, non-discriminatory reason for revoking
Complainant's security clearance.
Responsible management officials reasonably believed that Complainant knowingly
misrepresented his current residence to his supervisor.
The Agency had evidence at the time of Mr. Burkhardt's decision to substantiate the
finding that Complainant misrepresented his current legal residence to his supervisor. On
February 9, 2005, the Complainant was read on to a TS/SCI Top Secret Sensitive
Compartmented Information security clearance. AE 1 at 3-7. By his signature, the Complainant
certified that he would report any change in current residence to the Special Security Officer
(SSO) TEC as soon as possible, but not later than 7 days after the change. AE 1 at 5.
Complainant's first line supervisor, Mr. Charles Lopez gave the Complainant the TAB
Employee Info Sheet to fill out when he became the Complainant's supervisor. FFC at 39, 184.
The TAB Employee Info Sheet contains an entry for "Home Address," followed by a colon and a
blank space. AE 3 at 1. The Complainant filled it out, but in the item entitled: "Home Address,"
instead of listing his current residence, he provided the address of a commercial mail facility. Id.
at 1; FFC at 38-39. A Memorandum For Record (MFR) dated March 14, 2005, signed by Mr.
9
Published Department of the Army security regulation AR 380-67 states that individuals must familiarize
themselves with pertinent security regulations that pertain to their assigned duties. [ROI at 143, Chap. 9-103(a)].
-12-
App. 59
Charles Lopez, states how he came to doubt the trustworthiness of the Complainant. AE 1 at 28.
In the MFR, Mr. Lopez documents that, "after claiming to reside in the vicinity of Huntington
Drive and Route 1 in Alexandria, I discovered that the address he had provided me, on two
occasions, placed his residence in the Kingstowne section of Fairfax County." Id at 28.
Mr. Harwig testified under oath at the Fact Finding Conference that he asked the
Complainant for his current legal address, and that the Complainant never provided it to him.
FFC at 127. Nothing in the record proves that the Complainant provided his legal residence to
the Agency prior to the decision to suspend him indefinitely. Accordingly, Complainant has
failed to meet his burden to prove by a preponderance of the evidence that the Agency acted with
discriminatory animus.
Responsible management officials reasonably believed that Complainant created a
disturbance in the workplace involving coworkers.
The record contains documentation and testimony that supports Mr. Burkhardt's belief
and determination that Complainant created a disturbance in the workplace. Complainant
admitted that Mr. Harwig observed him in the Sensitive Compartmented Information Facility,
specifically, the workspace of Ms. Kennan and Ms. Hubbard, after he had been transferred out of
their workgroup. HT at 71-72. Thus Complainant corroborated Mr. Harwig's Memorandum For
Record (MFR) dated February 28, 2005, stating that Mr. Harwig had observed the Complainant
on February 25th in the 1000 area of the Sensitive Compartmented Information Facility (SCIF),
which is the Source Acquisition Team (SAT) Room. AE 1, at 9; CE 33 at 48.
At the time of the decision in May 2005, Mr. Burkhardt had access to the following
evidence which supported his determination that Complainant created a disturbance:
Mr. Harwig's MFR dated February 28, 2005, also states that Ms. Kennan "made reference
to instances that sounded to me like stalking: He [Complainant] had looked up her ex-husband
on the internet and gotten information on him; He [Complainant] also admitted to Ms. Kerman
that he had driven through her neighborhood looking for her house." AE 1 at 9. The MFR states
that "Both Alana and Tish revealed many instances where his behavior had made them
uncomfortable." Id. at 9. The MFR indicates that Mr. Harwig sought advice from TEC Security
Office, and in response to their advice, Mr. Harwig removed the Complainant's access to the
1000 area where Ms. Kerman and Ms. Hubbard worked. Id. at 9.
The MFR states that Mr Harwig asked Mr. Jeff Popp, Team Leader for the Complainant's
team, to talk with the Complainant and document it. AE 1 at 9. The MFR states that Mr. Harwig
asked Mr. Popp to inform the Complainant of three things: 1. That his badge access to the 1000
was removed and that he was not to go into that area; 2. That he was not to distract Ms. Kennan
or Ms. Hubbard; and 3. That he should minimize his contact with Ms. Hubbard and Ms. Kennan.
-13-
App. 60
Id. On February 28, 2005, Mr. Popp carried out Mr. Harwig's instructions and sent an e-mail to
the Complainant and his chain of command. Id. at 10.
On March 7, 2005, the Complainant sent an e-mail to his TEC chain of command, the
TEC Legal Office, and TEC Security, entitled, "Whistleblowing on aberrant staff behavior," in
which he proceeded to make allegations against co-workers Alana Hubbard and Tish Kennan that
they were mentally unstable and unprofessional. AE 1 at 11-17. One of his allegations was that
Tish Kennan was suffering from "malignant uterine cancer and a hysterectomy" and "being a
single parent and having to commute every day across the Wilson Bridge." Id. at 16.
Complainant alleged that these things made Ms. Hubbard and Ms. Kennan potential security
risks. Id. at 11-17. Ms. Theresa Rasmussen, the SAT Team Leader, indicated in her testimony
about Complainant's email of March 7, 2005, that the contents were of such a personal nature
that it caused her to realize that what she had heard about his instability and/or vindictiveness
might in fact be true. HT at 410-411.
Mr. Burkhardt indicated in his decision to indefinitely suspend Complainant's security
clearance that Complainant did not deny or dispute the reasons stated in the Notice of Proposed
Suspension during his oral reply. ROI at 70. Mr. Burkhardt also testified credibly at the hearing
that Complainant gave no mitigating circumstances at that same oral reply. HT. at 289. It was
therefore reasonable for Mr. Burkhardt to rely on the information above to determine that
Complainant had created a disturbance in the workplace involving his co-workers and use it as a
contributing factor in his decision to revoke his security clearance.
I therefore find that the aforementioned evidence supports the Agency's articulation that
it reasonably believed that Complainant created a disturbance in the workplace with his
behaviors. This belief clearly establishes another of the Agency's legitimate, non-discriminatory
reason(s) for deciding to revoke Complainant's security clearance.
Responsible management officials reasonably believed that Complainant discussed
explosives with his coworkers.
The record reflects that Complainant admitted both at the hearing and during the March
11, 2005, meeting with Burkhardt and Agency management that he had not only discussed his
knowledge of explosives with coworkers during off site gatherings, but in fact had also made
them. CE 7; HT at 62-64, 94. Once again, the record shows that Complainant offered no
mitigating circumstances for his conduct at his opportunity to reply to Mr. Burkhardt's Notice of
Proposed Suspension. ROI at 70; HT at 289. Accordingly, the record supports the reasonableness
of Mr. Burkhardt's determination.
The gravamen of Complainant's arguments regarding evidence of discrimination, from
this Judge's perspective, focused on two or perhaps three areas of the Agency's actions. The first
relates to what Complainant apparently perceives as the Agency's disparate treatment of him in
comparison to Ms. Hubbard and Ms. Kennan during the period prior to the suspension of his
-14-
App. 61
security clearance. The second relates to the Agency's decision to place him on indefinite
suspension without pay pending adjudication of his security clearance. The third area of potential
discriminatory Agency action(s) was it's decision not to assign Complainant unclassified duties
to perform during the adjudication of his security clearance. See Complainant's Closing Brief
(Complainant's Brief). At the heart of Complainant's arguments regarding these issues is his
contention that Ms. Hubbard and Ms. Kennan's contentions regarding his behavior toward him
were false and essentially that management knew or should have known the contentions were
false. Id. at 1-3. I find that the record does not support Complainant's arguments.
Agency's Disparate Treatment of Complainant re Hubbard and Kennan.
Complainant's basic contention is that Ms. Hubbard and Ms. Kennan either were treated
differently than he was regarding comments made outside of the office and/or that those alleged
comments were not investigated in the same manner as his were. Complainant's Brief at 2-3.
Complainant argues that security clearance procedures were not applied fairly to him, but his
argument fails because he failed to identify them as valid comparators under applicable EEOC
precedent. By the accepted legal standard, these two younger female coworkers, Kennan and
Hubbard are hot valid comparators for purposes of reviewing security investigations in that they
neither made comments regarding making explosives nor wore a hidden recording device in a
secured area in the workplace. Additionally, the record reflects that Agency officials did in fact
investigate Complainant's allegations regarding Hubbard and Kennan in a similar manner to the
way the allegations against him were investigated, i.e., consulting with their managers and
coworkers, and found no evidence of wrong doing or inappropriate behavior at that time.
On March 7, 2005, the Complainant sent an e-mail to his TEC chain of command, the
TEC Legal Office, and TEC Security, entitled, "Whistleblowing on aberrant staff behavior," in
which he proceeded made allegations against co-workers Alana Hubbard and Tish Kerman that
they were mentally unstable and unprofessional. AE 1 at 11-17. One of his allegations was that
Tish Kerman was suffering from cancer and a hysterectomy. Id. at 16. Complainant alleged that
these things made Ms. Hubbard and Ms. Kerman potential security risks. Id. at 11-17.
On March 81h and 91\ 2005, Paul Harwig investigated the matters raised by the
Complainant in his e-mail of March 7, 2005. AE 1 at 20. He individually interviewed Alana
Hubbard and Tish Kennan. He asked each if they were under any stress themselves. Id. He also
interviewed Mary Pat Santoro (Branch Chief); Theresa Rasmussen (Team Leader), and Marty
Downing (co-worker), asking whether the person interviewed had any reason to suspect that Mrs.
Hubbard or Ms. Kerman showed any behavior, signs of stress, or personal situations that would
indicate that they might be a security risk. Id. In each interview, the person was in disbelief that
Mr. Harwig, would question the emotional stability or reliability of the two women. Id. On
March 10, 2005, Mr. Harwig reported the results of his investigation to the ERDC Security
Office in accordance with AR 380-67 chapter 9-103(b)(5). Id.
-15-
App. 62
Based on the totality of the record before me I find that the record fails to support
Complainant's contention that he was treated differently than Hubbard and Kennan so as to
support an inference of discriminatory disparate treatment. I also find that, at the time, Burkhardt
had a reasonable, good faith basis for believing Complainant's managers and coworkers and
therefore in making his decision that their testimony did not support Complainant's allegations
against Hubbard and Kennan.
Agency's decision to place Complainant on indefinite suspension without pay
pending adjudication of bis security clearance revocation.
A significant section of Complainant's Brief focused on his contention that he was the
victim of disparate treatment when the Agency suspended him without pay pending adjudication
of his security clearance revocation. Complainant focused on the 19 employees who had their
security clearances suspended but were assigned unclassified duties pending final adjudication of
their clearances. Complainant further focused on language that these employees had not
committed an overt act (bringing recording equipment onto a secure facility); were not
untrustworthy; and/or their character and loyalty were held in high esteem while Complainant's
was not. Complainant's Brief at 30-37.
While I agree that these issues could be relevant to this case, I believe the appropriate
standard under EEO law, as indicated in the previous section, is that the comparators must have
engaged in the same conduct under the same management officials. Kuracina v. US. Postal
Service, Appeal No. 01984991, 2001 EEOPUB LEXIS 6998, (Sep. 20, 2001). A review of the
hearings record indicates that none of the 19 employees in question brought recording equipment
onto a secure facility, nor did they attempt or admit to attempting to make recordings while
within a secure facility- both of which Complainant in fact did. Complainant's Brief at 30-37;
Agency Brief at 2-8; HT at 295-311. Specifically, no other employee in the work unit under the
same management officials had their security access suspended for wearing a wire in the TEC
Building and no other employee ever admitted to recording (or attempting to record) his
supervisors on a prior occasion in the TEC Building.
In making his decision, Mr. Burkhardt had access to a document provided by the Security
Office which covered the history of all 19 ERDC employees that had lost their security access.
ROI at 71; AE 12. Under applicable EEOC precedent, none of those 19 employees are
comparators. Only one employee on the list (number 3) had the same management officials as the
responsible decision makers in this case. Id.; Agency Brief at 6. Employee No. 3, (female, age
49) had the identical security clearance status of TS/SCI as Complainant, but the reasons
surrounding the revocation and suspension were not similar in that this employee's clearance was
suspended for questionable judgment and reliability due to personal behavior. Her supervisor
gave her a written reprimand and arranged for her to meet with an EAP counselor, however, she
did not keep the appointment. She was also ultimately terminated by management, unlike
Complainant. AE 12 at 2; CE 26 at 2. There were four other employees on the list who had
clearance status of TS/SCI, which is the same as Complainant's, specifically, individuals 13; 14;
-16-
App. 63
16; and 17, but all of the security incidents for those employees occurred before Mt. Burkhardt
became the Director on October 9, 2001. ROI, FFC at 83, AE 12.
Burkhardt credibly testified extensively and in detail, that based on his review of the
record, he made the determination that, unlike Complainant, none of the ERDC employees took
any overt action that could have compromised classified information. HT at 295-311. Burkhardt
testified at the hearing about the difference between Complainant and the others indicating none
of the comparator employees had issues regarding classified material potentially leaving the
facility and that both managers and coworkers provided supportive input regarding these
employees as to their trustworthiness. Id He indicated, however, that there was no supportive
input from management and/or coworkers regarding Complainant's behavior and/or
trustworthiness. Id
I therefore find that Complainant has failed to meet the applicable burden of proof, e.g.,
that of proving, by a preponderance of the evidence, that the legitimate reason proffered by the
Agency for suspending his security clearance indefinitely (bringing recording equipment onto a
secure facility for the purpose of making clandestine recordings) was a pretext for discrimination.
Agency's decision not to assign Complainant unclassified duties to perform during
the adjudication of his security clearance.
Finally, Complainant alleges that the Agency's failure to assign Complainant unclassified
duties to perform during the adjudication of his security clearance is indicative of discriminatory
animus on its part. The totality of the record fails to support Complainant in this regard. The
record reflects that the Agency in fact did explore the possibility of retaining Complainant by
assigning him to an interim position with unclassified duties within the Agency, but found that
no such position(s) were then available.
The record reflects that the Agency determined there were no vacant positions at ERDC
TEC or the other ERDC Office in Alexandria that did not require a secret clearance. At the
hearing, Human Resources Specialist Mr. James Klein testified that he conducted a search both
locally with the appropriate on site personnel, as well as contacting his peers in the Vicksburg,
Hanover and Champaign, Illinois sites. HT at 432-435. On May 19, 2005, Klein sent an e-mail
to Ms. Patsy Abbott of the ERDC Deputy Director's Office in which he requested assistance in
placing the Complainant in a position located in Alexandria at the Deputy's Office which would
not require a security clearance. AE 10. Mr. Klein informed the TEC Deputy Director Mr.
Greczy that there were no vacant positions available at the TEC location that did not require at
least a secret security clearance. AE 11.
On May 20, 2005, Mr. Harwig made an inquiry of Ms. Santoro, Ms. Rasmussen, and Mr.
Downing and determined that Complainant's duties on the SAT required access to classified
rooms 50-80 percent of the time. [AE No. 8] That information was provided to Mr. Burkhardt
and he considered it in the decision to suspend the Complainant. ROI at 70. Burkhardt therefore
-17-
App. 64
determined that there were no positions available for the Complainant to be reassigned to at
ERDC in Alexandria, Virginia. HT at 293. 10
I therefore find that Complainant has failed to meet his burden of proving that the
legitimate reason proffered by the Agency for suspending his security clearance indefinitely and
not providing him with an interim position working with classified materials was a pretext for
discrimination.
CONCLUSION
The record and the hearing testimony support the conclusion that the Agency has
articulated legitimate, non-discriminatory reasons for its action. Complainant has failed to rebut
the Agency's articulated reasons and failed to provide evidence that he is a victim of
discrimination based on his sex, age and/or reprisal. Complainant has not provided evidence
from which a fact finder could reasonably conclude that he was a victim of intentional
discrimination. The record as a whole supports the Agency's articulated facts. Complainant has
not provided evidence sufficient to show that management did not subjectively believe the
following: Complainant wore a hidden recording device in a secure facility on multiple
occasions; he covertly recorded (or attempted to record) conversation(s) with his supervisor; he
failed to give his current legal residence; he created a disturbance in the workplace whereby he
boasted to coworkers that he was a person who knew how to make bombs and was charged with
stalking a coworker. Ultimately, Complainant simply failed to persuade this Judge that the
Agency's actions amounted to intentional discrimination.
For the reasons set forth above, I find that the Complainant did not prove by preponderant
evidence that he was discriminated against. Accordingly, I enter judgment in favor of the
Agency.
1
°Contemporaneous documents also support the Agency's legitimate non-discriminatory articulations
regarding this issue. On May 25, 2005, Colonel Rowan sent an e-mail to Mr. Burkhardt stating that he was aware
that there were no open positions that the Complainant could work in that did not require a security clearance. AE 6
at 1-2.
-18-
App. 65
NOTICE
This is a decision by an Equal Employment Opportunity Commission Administrative
Judge issued pursuant to 29 C.F.R. § 1614.109(b), 109(g) or 109(I). With the exception
detailed below, the complainant may not appeal to the Commission directly from this
decision. EEOC regulations require the Agency to take final action on the complaint by issuing
a final order notifying the complainant whether or not the Agency will fully implement this
decision within forty (40) calendar days of receipt of the hearing file and this decision. The
complainant may appeal to the Commission within thirty (30) calendar days ofreceipt of the
Agency's final order. The complainant may file an appeal whether the Agency decides to fully
implement this decision or not.
The Agency's final order shall also contain notice of the complainant's right to appeal to
the Commission, the right to file a civil action in federal district court, the name of the proper
defendant in any such lawsuit and the applicable time limits for such appeal or lawsuit. If the
final order does not fully implement this decision, the Agency must also simultaneously file an
appeal to the Commission in accordance with 29 C.F.R. § 1614.403, and append a copy of the
appeal to the final order. A copy of EEOC Form 573 must be attached. A copy of the final order
shall also be provided by the Agency to the Administrative Judge.
If the Agency has not issued its final order within forty (40) calendar days of its receipt of
the hearing file and this decision, the complainant may file an appeal to the Commission directly
from this decision. In this event, a copy of the Administrative Judge's decision should be
attached to the appeal. The complainant should furnish a copy of the appeal to the Agency at the
same time it is filed with the Commission, and should certify to the Commission the date and
method by which such service was made on the Agency.
All appeals to the Commission must be filed by mail, personal delivery or facsimile to the
following address:
Director
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE, 5th Flr.
Washington, D.C. 20507
Facsimile (202) 663-7022
Facsimile transmissions over 10 pages will not be accepted.
-19-
App. 66
COMPLIANCE WITH AN AGENCY FINAL ACTION
An Agency's final action that has not been the subject of an appeal to the Commission or
civil action is binding on the Agency. See 29 C.F.R. § 1614.504. If the complainant believes
that the Agency has failed to comply with the terms of its final action, the complainant shall
notify the Agency's EEO Director, in writing, of the alleged noncompliance within thirty (30)
calendar days of when the complainant knew or should have known of the alleged
noncompliance. The Agency shall resolve the matter and respond to the complainant in writing.
If the complainant is not satisfied with the Agency's attempt to resolve the matter, the
complainant may appeal to the Commission for a determination of whether the Agency has
complied with the terms of its final action. The complainant may file such an appeal within
thirty (30) calendar days of receipt of the Agency's determination or, in the event that the Agency
fails to respond, at least thirty-five (35) calendar days after complainant has served the Agency
with the allegations of noncompliance. A copy of the appeal must be served on the Agency, and
the Agency may submit a response to the Commission within thirty (30) calendar days of
receiving the notice of appeal.
To:
Walton B. Campbell
6036 Richmond Highway
#211
Alexandria, VA 22303
June D.W. Kalijarvi, Esq.
Kalijarvi, Chuzi & Newman, PC
1901 L Street, NW, Ste. 610
WDC 20036
Timothy Felker, Esq.
Servicing Labor Counsel
U.S. Army Engineer Research & Development Center
CEERD-OC-A, Bldg. 2592
7701 Telegraph Road
Alexandria, VA 22315-3864
Linda S. Wilkinson, EEO Mgr.
ERDC-Army Corps of Engineers
Waterway Experiment Station
3909 Halls Ferry Road
Vicksburg, MS 39180-6199
-20-
App. 67
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
WASHINGTON, D.C. FIELD OFFICE
131 M Street, NE, Suite ON4W
Washington, D.C. 20507
Walton B. Campbell,
Complainant,
v.
Pete Geren, Secretary,
Department of the Army,
Agency.
) EEOC No. 570-2006-00375X
) Agency No. ARCEERDC08JUL09922
)
)
)
)
)
)
)
Date: January 13, 2014
ORDER FOR DAMAGES EVIDENCE
Complainant is the prevailing party on the following issue(s):
On August 4, 2005, complainant filed an EEO complaint alleging that he was
discriminated against on the bases of sex (male), age (57) and reprisal when on May 27,
2005, he was indefinitely suspended without pay pending a determination of his secret
security clearance.
Accordingly, Complainant is ORDERED to provide the undersigned with his/her written
claim for damages that were caused by this violation, along with supporting evidence, on or
before January 31, 2014. 1 The Agency will have until February 17, 2014, to provide a response to
Complainant's request for damages. If either party wishes to have a hearing on the issue of
damages, their submission shall so state and provide a basis for this request.
After the submissions have been reviewed, it will be determined if this matter requires a
hearing to address damages, at which time a date will be set.
If, after review of the submissions, an additional hearing to address damages is not
required, the undersigned will issue a full written decision including the order for damages.
The parties are advised that this matter may be settled until the date the final
decision is issued.
In light of Complainant's multiple representative(s) and the complexity of the litigation in this case, I
am amenable to a request for additional time from the parties to respond to this Order if they find such time
is necessary.
1
-1-
App. 68
ORDER FOR STATEMENT OF ATTORNEY'S FEES
The Complainant in this matter is a prevailing party and therefore may be entitled to an
award of attorney's fees and costs. Attorney's fees are only available in actions brought pursuant
to Title VII of the Civil Rights Act of 1964, as amended, and the Rehabilitation act of 1973, as
amended. 29 C.F.R. § 1614.501(e).
The Complainant is ordered to submit a verified statement of fees and costs accompanied
by an affidavit executed by the attorney of record. The method by which attorney fees are
calculated is known as the "lodestar," in which the number of hours reasonably expended are
multiplied by a reasonable hourly rate.
The statement of attorney's fees and costs must be accompanied by an affidavit executed
by the attorney of record itemizing the attorney's charges for legal services. A verified statement
of fees and costs shall include the following:
1. A list of services rendered itemized by date, number of hours, detailed summary of the
task, rate, and attorney's name;
2. Documentary evidence ofreasonableness of hours, such as contemporaneous time
records, billing records, or a reasonably accurate substantial reconstruction of time records;
3. Documentary evidence of reasonableness of rate, such as an affidavit stating that the
requested rate is the attorney's normal billing rate, a detailed affidavit of another attorney in the
community familiar with prevailing community rates for attorneys of comparable experience and
expertise, a resume, a list of cases handled, or a list of comparable cases where a similar rate was
accepted; and
4. Documentation of costs including, but not limited to, such documentation as receipts,
bills, invoices, telephone bills, certified/express mail receipt numbers, per page photo copying
rate, and the number of pages photocopied.
The statement of Attorney's fees and costs shall be filed by January 31, 2014. The Agency
may respond to the statement of attorney's fees and costs by February 17, 2014. If the Agency
disputes the Complainant's verified statement of attorney's fees and/or costs, then the Agency
shall file detailed documentation, as previously noted above, in support of its contentions.
Any verified statement of attorney's fees and/or costs and any response filed by the
Agency thereto shall comply with the governing regulations, including, but not limited to the
pertinent regulations set forth at 29 C.F.R. § 1614.501 (e). The parties should also consult
Chapter 11 of EEOC Management Directive.
-2-
App. 69
Failure to comply with any of the Orders in this case or failure to attend any scheduled
event may lead to sanctions including the possible dismissal of the captioned complaint(s). See
29 C.F.R. §§ 1614.107(a)(7); 109(b); 109(0(3).
It is so ORDERED.
Varice Ted Henry
Varice Ted Henry
Administrative Judge
Telephone: (202) 419-0717
Facsimile:
(202) 419-0740
cc:
June D.W. Kalijarvi, Esq.
Kalijarvi, Chuzi & Newman, PC
1901 L Street, NW, Ste. 610
WDC20036
202-331-9260
866-452-5789 FAX
jkalijarvi@kcnlaw.com
Timothy Felker, Esq.
Servicing Labor Counsel
U.S. Army Engineer Research & Development Center
CEERD-OC-A, Bldg. 2592
7701 Telegraph Road
Alexandria, VA 22315-3864
703-428-8124
703-428-8154
timothy.l.felker@usace.army.mil
-3-
App. 70
•
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. B-,x 77960
Washington, DC 20013
Walton B. Campbell,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
fB) IE C IE I WI lefm
lfl1
law Office of Ga,y M. Gilbert
and Associates
Appeal No. 0120080478
Hearing No. 570-2006-00375X
Agency No. ARCEERDC05JUL09922
DECISION
On October 31, 2007, complainant filed an appeal from the agency's October 4, 2007 fmal
order concerning his equal employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is accepted for de novo
review, pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
REVERSES the agency' s final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) erred in finding that there were no genuine
issues of material fact and/or credibility which required resolution at a hearing.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Physical Scientist
at the Army Corps of Engineers, Engineer Research and Development Center (ERDC),
Topographic Engineering Center (TEC) in Alexandria, Virginia. On August 4, 2005,
complainant filed an EEO complaint alleging that he was discriminated against on the bases of
•
ATTACHMENT #2
App. 71
l!l/
MAY l 8 2010
·'-----
l
2
0120080478
sex (male) and age (57) when, on May 27, 2005, he was indefinitely suspended without pay
pending a determination of his secret security clearance .1
At the conclusion of the investigation, complainant was provided with a copy of the. report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over complainant's objections, the AJ
assigned to the case granted the agency •s November 2, 2006 motion for a decision without a
hearing ( "Motion") and issued a decision without a hearing on September 19. 2007, in favor
of the agency.
AJDecision
At the outset, the AJ agreed with the agency ' s assertion that complainant failed to establish a
prima facie case of sex or age-based discrimination. Specifically, the AJ found that
complainant did not show that others, not in his protected group, were treated differently under
similar circumstances. The AJ noted that complainant identified two younger female coworkers who reported him to management as a potential security risk approximately 10 days
after complainant reported them as security risks. The AJ noted that complainant came under
scrutiny for wearing a hidden recording device at the workplace. recording his supervisors,
failing to provide management with his home address (]egal residence), and creating a
"disturbance" in the workplace. The AJ found that complainant provided no evidence
showing that either of the alleged comparators engaged in similar activities.
The AJ further found that the agency proffered reasonable and legitimate non-discriminatory
reasons for its actions. According to the AJ, the agency produced evidence that it acted
properly under national security laws and regulations in suspending complainant 's access to
classified information and in subsequently suspending him indefinitely without pay.
The AJ then found that complainant did not provide preponderant evidence from which a fact
finder could reasonably conclude that he was the victim of intentional discrimination. The Al
found that the record as a whole supported the agency's articulated facts, ·and complainant did
not provide evidence of the state of mind of the responsible managerial officials sufficient to
show that they did not subjectively believe that the allegations against complainant could be
true (e.g. that complainant wore a hidden recording device in a secure facility on m11ltiple
occasions; that he failed to give his current legal residence; and that he created a disturbance in
the workplace). The AJ then found no discrimination. The agency subsequently issued a final
order adopting the AJ ' s fmding that complainant failed to prove that he was subjected to
discrimination as alleged.
1
Neither the decision to review his security clearance nor the outcome of the review is at
issue here. Complainant ' s claim is that the agency discriminated against him by not allowing
him to continue working while his security clearance was under review.
App. 72
3
0120080478
CONTENTIONS ON APPEAL
On appeal, complainant, through counsel, contends that there are genuine issues of fact in
dispute regarding the agency ' s reasons for suspending him which are clearly material to
whether or not the suspension was discriminatory. Specifically, complainant notes the
following: on March 14, 2005, he was fonnally debriefed about his Top Secret/SCI clearances
and his access to classified infonnation was withdrawn. Management proposed his indefinite
suspension on April 27, 2005, and the agency issued a decision letter suspending him on May
27, 2005. Complainant, however, points out that between March 14 and May 27, he was
performing work even though he no longer had a security clearance. Complainant 's
supervisor reported that "[complainant's] current duties did not require for him to have
access to classified information." Complainant's Team Leader testified that during this
period, "(complainant] was doing the things I gave him to do and he was getting theiµ done on
time." On March 21, 2005, complainant's Supervisor notified Security that, "There_ is no
restriction on his [ complainant 's] use of the unclassified network." Complainant contends
that, as of March 21, 2005, his management was fully aware that he was perfonning his
assigned tasks without access to any classified materials. Complainant contends that this
evidence clearly disputes, and if found credible, rebuts the agency ' s articulated reasons for
suspending complainant without pay.
Complainant also contends that the agency treated him less favorably than his two younger
female co-workers (Cl_ and C2). Specifically. complainant contends that the agency treated Cl
and C2 differently with regard to how they reacted and investigated the allegations of
untrustworthiness and security violations by them and by_ complainant respectively and, as
such, is liable for the resultant damages. 2 Complainant contends that the agency is not relieved
from liability merely because Cl and C2 's access to classified infonnation and security
clearances was not removed.
In response to the appeal, the agency contends that the AJ properly found that complainant did
not establish a prima facie case of discrimination or provide evidence that the agency 's
reasons were pretextual. The agency also asserts that the AJ properly found that there were no
genuine issues of material fact in dispute or that any credibility determinations· were required.
In addition, the agency asserts that, based on the uncontradicted evidence in the record, the~e
is no support for complainant 's argument that a finder of fact could conclude that his
"security clearance suspension" did not require suspending his employment. Therefore, the
agency asks the Commission to affinn its final order.
Complainant alleged that one of the younger females stated to him in normal conversations
that she was an ex-Marine, was a good marksman and knew how to shoot. Complainant
indicated that he feared her because of these statements. ROI, Ex. F-8.
2
App. 73
4
0120080478
ANALYSIS AND FINDINGS
At the outset, we note that, as this is an appeal from a FAD issued without a hearing, pursuant
to 29 C.F.R. § 1614.llO(b), the agency's decision is subject to de novo review by the
Commission. 29 C.F.R. § 1614.405(a). The Commission's regulations allow an AJ to issue a
decision without a hearing when he or she fmds that there is no genuine issue of material fact.
29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has
held that summary judgment is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists no genuine issue of material
fact. Anderson v. liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for
summary judgment, a court 's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party
must be believed at the summary judgment stage and all justifiable inferences must be drawn in
the non-moving party ' s favor. Id. at 255. An issue of fact is "genuine" if the evidence is
such that a reasonable fact finder could find in favor of the non-moving party. Celotex v.
Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. ·Corp., 846 F.2d 103, 105 (1st
Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that
the record has been adequately developed for summary disposition. See Petty v. Department of
Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit."
Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission bas noted that
when a party submits an affidavit and credibility is at issue, "there is a need for strident crossexamination and summary judgment on such evidence is improper." Pedersen v. Department
of Justice, EEOC Request No. 05940339 (February 24, 1995). "Truncation of this process,
while material facts are still in dispute and the credibility of witnesses is still ripe for
challenge, improperly deprives complainant of a full and fair investigation of her claims." Mi
S. Bang v. United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998); see
also Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31,
·1996); Chronister v. United States Postal Service, EEOC Request No. 05940578 {April 23.
1995). The hearing process is intended to be an extension of the investigative process.
designed to "ensure that the parties have a fair and reasonable opportunity to explain and
supplement the record and to examine and cross-examine witnesses." See EEOC Management
Directive (MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. §
1614.109(d) and (e).
Next, we note that the Commission has issued decisions affuming the dismissal of complaints
contesting the deci$ion to revoke or deny a security clearance, finding that such claims fail to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(l). See. e.g., Rezaee v. Department of the
App. 74
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Air Force, EEOC Appeal No. 01A60451 (April 25, 2006); Carr v. Department of the Army,
EEOC Appeal No; 01A44011 (November 4, 2004). However, the Commission has reviewed
whether the grant, denial, or revocation of a security clearance was carried out in a
discriminatory manner. Id.; Dodson v. Department of Defense, EEOC Appeal No. 01954101
(June 13, 1997) (the Commission found discrimination where a manager sought to have an
employee's clearance revoked in retaliation for filing EEO complaints); Schroeder v.
Department of Defense (Defense Mapping Agency), EEOC Request No. 05930248 (April 14,
1994). As previously noted, the instant case concerns complainant's challenge to the decision
to suspend hlm indefinitely without pay, instead of continuing to provide bim with work that
was not classified, while awaiting a determination on his security clearance. The issue clearly
states a viable claim that can be properly adjudicated within the EEO complaints process.
Complainant claims there were unclassified duties he could have performed, and that he had in
fact been pennitted to do them for a period of time, but management chose not to allow that
anymore because of discrimination. The agency denies that such work was available for
complainant, and/or even if it were available, denies that it had the obligation to provide
complainant with such work, noting that "[u]nder the circumstances. [complainant's]
retention in duty status would be detrimental to national security interests." May 27, 2005
·oecision Notice. We note, however, the testimony of complainant 's Supervisor and Team
Leader that complainant 's current duties did not require him to have access to classified
infonnation; he was doing the things he was given and performing his duties in a timely
manner; and that there were no restrictions on his use of the unclassified network.
Because, at the summary judgment stage, complainant's evidence must be believed and all
justifiable inferences drawn in his favor, we find that judgment as a matter of law should not
have been granted in this case as the record contains genuine issues for trial. There is clearly a
genuine material issue of fact in dispute concerning why management decided that complainant
needed to be suspended without pay after he had been allowed to continue working between
March 14, 2005 (when he was formally debriefed and his clearances and access to classmed
information was withdrawn), and May 27, 2005 (when the agency issued a decision letter
suspending him).
Complainant asserts that the decision to place him on suspension without pay was
discretionary, as the agency did not have a policy that an individual must be suspended if his or
her security clearance was suspended. Complainant contends that in fact, the opposite was true
- no employee had ever been indefinitely suspended without pay due to a suspended or revoked
security clearance. The agency 's response to this is that no prior employee had ever been
found to have committed any "overt act," as complainant was found to have done (i.e., by
bringing recording equipment onto secured property). In any event, there is clearly a need for
a credibility determination as to whether complainant 's case was in fact, as different as
management claims, from the cases of others whose security clearance came under review in
the past.
App. 75
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Finally, we note that the May 27, 2005 Decision letter indicates that a reason complainant was
being suspended was that he "created a disturbance in the workplace involving coworkers.
Specifically, you boasted to. co-workers that you were a person who sought revenge and knew
how to make bombs.,. Complainant denies that he ever made such statements and asserts that
none of his coworkers testified that they ever heard him threaten or attempt to take revenge on
anybody or threaten or attempt to blow anybody up with any bombs. He also notes that his
Supervisor "is not credible because his official documentary accounts and sworn testimony
regarding what he was told by [the younger female co-workers] during their single meeting on
February 25, 2005, has materially and repeatedly changed. He also questions why he would
have been permitted to continue working at all if he had truly made bomb-related threats or
comments.
The hearing process is intended to be an extension of the investigative process. and is designed
to ensure that the parties have "a fair and reasonable opportunity to explain and supplement
the. record and, in appropriate instances, to examine and cross-examine witnesses." See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-i10), 7-1
(November 9, 1999); see also 29 C.l~.R. § 1614.109(e). "Truncation of this process. while
material facts are still in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives complainant of a full and fair investigation of her claims." Mi S. Bang v.
United States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998). See also
Peavley v. United States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
· Chronister v. United States Postal Service, EEOC Request No. 05940578 (April 25. 1995). In
summary. there are simply too many unresolved issues which require an assessment of the
credibility of the parties. and the reason for complainant 's suspension.
CONCLUSION
In this case, issuance of a decision without a hearing was not warranted under 29 C.F.R.
§ 1614.109(g). The Commission REVERSES the agency's final order and REMANDS the
matter for a hearing in accordance with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Washington Field Office the request for a
hearing within fifteen (15) calendar days of the date this decision becomes final. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that the complaint file has
been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the agency shall issue
a final action in accordance with 29 C.F.R. § 1614.110.
App. 76
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0120080478
IMPLEMENTATION OF THE COMMISSION'S DECISION (1{0501)
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 19848, Washington, D.C.
20036. The agency's report must contain supportpig 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 G.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 (M1208)
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.
2.
The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director. Office of Federal Operations, F.qual
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
App. 77
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0120080478
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 reconsider~tion 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 (R0408)
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 State
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