Wednesday, October 18, 2017

Dual Citizenship Rules Change For Clearance Applicants

New Adjudicative Guidelines went into effect on June 8, 2017. These govern security clearance determinations throughout the federal government for both employees and contractors. Of the thirteen guidelines, Guideline C: Foreign Preference has the most changes.

In the previous 2005 version, Guideline C stated its concern:
When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may provide information or make decisions that are harmful to the interests of the United States.
(¶ 9 (2005)). In the 2017 version, the Adjudicative Guidelines begins with this same statement, but adds the following new explanation:
Foreign involvement raises concerns about an individual’s judgment, reliability, and trustworthiness when it is in conflict with U.S. national interests or when the individual acts to conceal it. By itself, the fact that a U.S. citizen is also a citizen of another country is not disqualifying without an objective showing of such conflict or attempt at concealment. The same is true for a U.S. citizen’s exercise of any right or privilege of foreign citizenship and any action to acquire or obtain recognition of a foreign citizenship.
SEAD 4, Appendix A, ¶ 9 (emphasis added). Two broad conditions may now raise a concern under this guideline: foreign involvement that is in conflict with U.S. national interests and foreign involvement that an applicant fails to disclose.

Significantly, the new Guideline C makes clear that dual citizenship in itself is not disqualifying. If the dual citizenship is appropriately disclosed in the clearance application process and is not judged to be contrary to U.S. national interests, the dual citizen may nevertheless be granted a security clearance. This is a big departure from previous practice where applicants who were dual citizens could get past Guideline C only after surrendering their foreign passport and professing a willingness to renounce the foreign citizenship.

Changes to “Conditions that could raise a security concern and may be disqualifying” (¶ 10 in both the 2005 and 2017 versions) give some indication of how this reshaping of Guideline C is likely to be implemented. A concern raised by “applying for and/or acquiring citizenship in any other country,” (¶ 10(a) (2017)) may be mitigated if it is found that “the foreign citizenship is not in conflict with U.S. national security interests.” (¶ 11(a)). The applicant does not control this determination, of course, but no longer is the exclusion a blanket one for all dual citizens of even the friendliest countries.

A foreign citizenship that is found to be in conflict with U.S. national security interests can nevertheless be mitigated by an expressed willingness to renounce the foreign citizenship. (¶11(c) 2017).

Exercise of “the rights, privileges, or obligations of foreign citizenship,” which, under the previous guidelines could be mitigated if this exercise of rights took place before the applicant became a citizen of the U.S., now may also be mitigated if they “do not present a national security concern.” (¶11(e) (2017)).

Dual citizens may retain and even use a foreign passport except when entering or leaving the U.S.. Guideline C continues to find concerning “failure to use a U.S. passport when entering or exiting the U.S.” (¶10(c) (2017))

Concealment, as throughout the security clearance process, remains disqualifying. Failure to report one’s citizenship in another country, and failure to report the possession of a passport or security card from another country, raises concerns. This concern is also not mitigated.

Of course dual citizenship is not the only circumstance addressed by Guideline C. Under the new Guideline C, the activities of lobbyists or business people who may or may not be foreign nationals are also addressed. Concerns may be raised if an applicant acts,
to serve the interests of a foreign person, group, organization, or government in any way that conflicts with U.S. national security interests.
(¶10(d)(2) (2017)). This concern sweeps into its breadth those who lobby for a foreign government or business. And while it may encompass inadvertent as well as deliberate service to the interests of a foreign entity, it may also allow such service unless it conflicts with U.S. national security interests.

The new Guideline C is good news for dual citizens. It is now possible for a dual citizen to get a security clearance if she fully discloses her connections to the foreign country and if that country is judged to pose no risk to U.S. national security interests. The first is within the control of any applicant; the second is not. It remains to be seen how the new breadth of Guideline C will be implemented.

Written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, October 4, 2017

“We were going to do it anyway” claims are being debunked in retaliation cases.

Recent decisions and statutes are making it harder for employers to legally claim they “were going to do it anyway” when taking an adverse action against an employee who has engaged in protected activity. Under the Whistleblower Protection Enhancement Act of 2012, a federal agency may escape liability for an adverse action if it can prove by clear and convincing evidence that it would have taken the action even absent the employee’s protected disclosure. In Craig v. Department of Treasury, the U.S. District Court for the District of Columbia rejected the Agency’s claim that it was just “proceeding along lines previously contemplated” when it detailed an SES-level employee to an inferior position just six days after the Agency learned he had filed an informal EEO complaint. In July 2017, the Occupational Safety and Health Administration ordered Wells Fargo to reinstate a Southern California woman, Claudia Ponce de Leon, “who was fired in 2011 three weeks after she called the company’s ethics line to report that colleagues were opening fake accounts in order to meet sales goals.” However, as of September 27, 2017, Wells Fargo was refusing to reinstate Ms. Ponce de Leon, claiming that she “was not fired because she blew the whistle on phony accounts, but because she engaged in inappropriate behavior.” 

Federal government employees alleging unlawful retaliation under Title VII must show that retaliation was a motivating factor in the contested personnel action, even if it was not the only factor. Similarly, under the Sarbanes-Oxley Act, employees alleging bank fraud must show that his or her protected activity was a “contributing factor in the employer’s decision to take unfavorable employment action against the employee.” Even if the employer “were going to do it anyway,” as long as the employee’s protected activity either motivated or contributed to the employer’s decision to take the adverse action, the employer may be held liable. The recent cases involving the Department of Treasury and Wells Fargo identify certain facts that tend to establish the employee’s protected activity was a motivating/contributing factor in the adverse personnel action, thereby negating the defense that the action was going to take place anyway.

In Craig, the Agency claimed that it was contemplating Mr. Craig’s removal from his SES position before he engaged in any protected EEO activity. One month prior to his filing an informal EEO complaint, Mr. Craig and his supervisor discussed the idea of finding another position for him that would be a “better fit.” Just six days after he filed his informal EEO complaint, the Agency formally announced his removal from the SES position. The Court found no retaliation based on his removal from the SES position: “Although ‘temporal proximity of an adverse action close on the heels of protected activity is a common and highly probative type of circumstantial evidence of retaliation,’ the Supreme Court has made clear that ‘[e]mployers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

The Court did find, though, a genuine dispute as to whether the Agency’s transferring Mr. Craig to an Executive Lead position–which was an indisputably inferior position– after his removal from the SES position was done in retaliation for his engaging in the EEO process. The Agency claimed that Mr. Craig and his supervisor had discussed the parameters of his new role as the Executive Lead prior to his engaging in EEO activity, and that it was just “proceeding along lines previously contemplated” when it detailed him to the Executive Lead position. Mr. Craig, however, “present[ed] competent evidence that casts doubt on how well formed the position was when Ms. Babers learned of his EEO activity.” The Executive Lead role was not defined when Mr. Craig and Ms. Babers had the “better fit” meeting in September 2012. More importantly, the Court noted, Ms. Babers “had not yet decided at least some fundamental details concerning the position by the time she learned of Mr. Craig’s EEO complaint. For example, Ms. Babers…had not yet ‘made a decision that [Mr. Craig] wouldn’t have any staff as of December 11, 2012’-just six days after she learned of his complaint.” The Court found that a reasonable jury could “conclude that detrimental aspects of the Executive Lead position were not decided until after Ms. Babers learned of Mr. Craig’s EEO activity.” The Court further stated that the critical inquiry is “what Defendant intended Mr. Craig’s detail to be prior to learning of his EEO activity.”

In the Wells Fargo matter, the Labor Department investigation which resulted in the order that Wells Fargo reinstate Ms. Ponce de Leon “found no evidence to back up the bank’s allegations” that she “drank excessively and…engaged in other inappropriate behavior.” At odds with Wells Fargo’s contention that she engaged in inappropriate behavior was the fact that Wells Fargo had promoted her “10 times over the span of a decade and on June 11, 2011, the same month she reported sham accounts. Three weeks later, the bank fired her.” Given Ms. Ponce de Leon’s promotion the same month she reported the sham accounts, it is difficult to credit Wells Fargo’s assertion that it contemplated her removal before it learned of her whistleblowing activity.

In the typical McDonnell Douglas Title VII analysis, when an employer has proffered a legitimate reason for an allegedly retaliatory action, the employee must come forward with “‘positive evidence beyond mere [temporal] proximity…to defeat the presumption that the proffered explanations are genuine.’” Procedural irregularities associated with the adverse action may constitute this positive evidence. In Craig, no one consulted with Human Resources concerning the detail position—which was unusual, according to the Human Resources representative, who “did not even learn about Mr. Craig’s detail until Mr. Peterson issued the Mint-wide announcement on December 11, 2012.” Additionally, Office of Personnel Management procedures governing detail positions for SES employees prohibit details that are not formally classified at the SES level for more than 240 days. “Despite this clear prohibition,” the Court noted, “Mr. Craig encumbered the Executive Lead position, well beyond this 240-day limit.” “Thus, the picture painted by the evidence is this: there was little or no advanced planning done to place Mr. Craig in the Executive Lead position and then, literally days after becoming aware of the EEO claim, Mr. Craig’s transfer was effected following no established procedures. Under those circumstances, a reasonable juror could certainly conclude that this was a knee-jerk reaction done in retaliation for his EEO claims.”

In Ms. Ponce de Leon’s case, given that Wells Fargo promoted her the same month she reported the sham accounts, and that it had awarded her numerous commendations over a period of six years–“the last one of which it awarded six months before firing her”–it is difficult to believe that Wells Fargo would have engaged in advance planning to effectuate her removal prior to becoming aware of her whistleblowing activities.

Ms. Ponce de Leon was the second Wells Fargo whistleblower whom OSHA ordered Wells Fargo to rehire. Around April 3, 2017, OSHA ordered Wells Fargo to not only reinstate a former bank manager, but also to pay him $5.4 million in back pay, compensatory damages, and legal fees. Like Ms. Ponce de Leon, he had received positive job performance reviews prior to his reporting incidents of suspected bank, mail, and wire fraud by two bankers. Wells Fargo told him he had 90 days to find a new job at Wells Fargo. He was fired after his search was unsuccessful, “and has been unable to find work in the banking industry since.”

Senator Elizabeth Warren, D-Mass, hailed OSHA’s order to reinstate Ms. Ponce de Leon as “the right decision to hold Wells Fargo accountable for retaliating against this courageous branch manager.” However, Wells Fargo is refusing to immediately reinstate Ms. Ponce de Leon, claiming the OSHA order is only preliminary, and that it intends to present new evidence on appeal “to prove it is right.” Wells Fargo has also chosen to ignore the Department of Labor’s order to reinstate the former bank manager. Wells Fargo’s refusal to reinstate violates the Sarbanes-Oxley Act regulations, which require immediate reinstatement upon receipt of the findings and preliminary order “regardless of any objections to the order.” Referring to Wells Fargo’s refusal to reinstate Ms. Ponce de Leon and the former bank manager, Senator Warren stated, “Wells Fargo’s continued attacks on its former workers is yet another reason why the Senate Banking Committee needs a hearing with Mr. Sloan [Wells Fargo CEO].” On October 3, 2017, the Senate Banking Committee held a hearing with Mr. Sloan. Senator Warren grilled Tim Sloan during the hearing. “In prepared testimony, Sloan apologized for the creation of the accounts and said the bank has hired back more than 1,000 workers who were wrongly fired or left under a cloud.” However, of the “1,000 who were wrongly fired,” and supposedly re-hired, Wells Fargo is refusing to rehire whistleblowers Ms. Ponce de Leon and the former bank manager.

Wells Fargo’s refusal to obey orders to reinstate whistleblower employees such as Ms. Ponce de Leon and the former bank manager notwithstanding, the recent orders and opinions from OSHA and the D.C. District Court show that employers can no longer always hide behind the “we were going to do it anyway” defense when it comes to retaliation claims.

Written by Valerie A. LeFevere.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml. 

Tuesday, September 26, 2017

No Remedy for Rape at West Point

Last month, the federal Court of Appeals for the Second Circuit issued a 2-1 decision holding that a female West Point cadet has no remedy against the Academy’s commanders for their systematic failure to protect women from rape. The decision is an unfortunate continuation of judicial deference to military commanders – a deference that has protected government officials when they lie and discriminate. It also continues a sexist tradition of blaming the victim and ignoring our responsibility to deter rape and provide relief to survivors.

The decision came in the case of Doe v. Hagenbeck. Doe alleged that Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, in their personal capacities, bore liability for her rape by another cadet. Lieutenant General Hagenbeck, Superintendent of West Point from 2006 to 2010, chaired the Sexual Assault Review Board, which is the “primary means of oversight” of the sexual assault prevention and response program at West Point. Brigadier General Rapp, Commandant of Cadets at West Point from 2009 to 2011, was in charge of the administration and training of cadets. Doe alleges that Hagenbeck and Rapp “perpetrat[ed] a sexually aggressive culture” at West Point that “discriminated against female cadets,” “put female cadets at risk of violent harm,” and resulted in her sexual assault.

Doe was raped on May 8, 2010, after accepting a drink from an upperclassman. Doe woke up the next morning in bed, bloodied and bruised, with dirt on her clothes and hair. She remembered lying on the concrete floor of a boiler room, not understanding what was happening. Her examination confirmed vaginal tearing, but no rape kit was administered.

In December 2011, the Defense Department issued its Annual Report on Sexual Harassment and Violence at the Military Service Academies for 2010-2011. It provides many statistics supporting Doe’s claim of a culture that accepted sexual assault, frowned on those who complain, and provided little accountability. The report shows that most women who choose not to report sexual assault do so out of fear for their reputation and future careers.

Accepting each of these facts as true, the Court’s majority still held that federal courts could provide no remedy to Doe. The majority relied on Feres v. United States, a case in which the Supreme Court held that, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service[.]” Rudolph Feres died in a barracks fire in Pine Camp, New York, and his widow filed a wrongful death claim against the Army alleging that the heating plant was known to be defective and the Army failed to maintain any fire watch.

Feres is one of many cases in which the Supreme Court has been deferential to the military and the Executive Branch on national security matters. In Korematsu v. United States, the Supreme Court permitted the government to forcibly move citizens of Japanese descent into concentration camps. While a monument recalls the suffering of those confined, the Supreme Court has never overturned the original decision.

In United States v. Reynolds, the Supreme Court barred federal courts from forcing the military to release reports deemed to contain national security secrets. Three widows sought compensation for their spouses' deaths in the crash of an Air Force plane. The spouses worked for RCA. The Air Force claimed that releasing the accident report would expose secret information about its new radio equipment. Although four federal judges upheld a default judgment against the Air Force, the Supreme Court reversed and created the “State Secrets” doctrine barring courts from interfering in government claims of national security. In 2000, the Air Force declassified the crash report which showed their plane had crashed from engine failure. The report had no classified information about the new radios.

Judge Denny Chin dissented in the West Point case, noting that:

Assuming, as we must at this juncture of the case, that the allegations of the amended complaint are true, … Jane Doe was subjected to pervasive and serious sexual harassment, including rape, at … West Point. The harassment resulted from practices and policies that the individual defendants permitted to proliferate and, indeed, implemented or encouraged, depriving Doe of an equal education because of her gender.

***

I do not agree that the Feres doctrine applies, for in my view Doeʹs injuries did not arise ʺincident to military service.ʺ

Victims of sexual assault also face a long history of attempts to blame them for the crimes committed against them. Too frequently, rapists attempt to escape liability, and government officials deflect responsibility, by claiming that what the victims wore, drank, or said justifies the assaults against them.

Since Doe filed her claims, the Army has stepped up its prosecutions of rapists. This year, it sentenced West Point cadet Jacob Whisenhunt to 21 years in prison for three counts of sexual assault in July 2016. The Army’s report, however, makes no mention of any compensation to the victims.

Just this month, U.S. Secretary of Education Betsy DeVos raised concern for the "dozens upon dozens" of whom she described as male students falsely accused of sexual misconduct because [Obama Administration policies] limited due process for those accused, was confusing, and lowered standards for sexual assault.

Doe’s legal team from Yale University may yet seek rehearing or review by the Supreme Court. In the meantime, young people considering military service may well consider how long traditions and the current state of the law leave them with no remedies in civilian courts. Even if commanders violate the Constitution or make false claims about national security, and even in cases of rape, courts will give no remedy on the ground the survivor chose to serve.


By Richard Renner


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.
 

Monday, August 28, 2017

Googling for a Cause of Action

Earlier this month, James Damore, a Google software developer, lost his job after authoring a memo on the reasons for gender discrepancies in the information technology sector. In his memo, Damore argued that women are not as biologically suited to be software engineers as men. Damore also argued that the policies and programs implemented by Google to encourage gender and racial diversity highlight the company’s “politically correct” ideology and create an oppressive environment for employees with more conservative leanings. Damore shared his memo internally with his coworkers through an online collaborative workspace, but eventually the memo made it into the hands of reporters and it became a national news story. Within days, Google fired Damore for violating the company’s code of conduct by perpetuating gender stereotypes with his memo. After his termination, Damore stated that he was “exploring all possible legal remedies” and retained a lawyer.

So, the questions arise, what are Google’s legal liabilities in this situation and what federal causes of action might be available to Damore?

At-Will Employment

The first thing to realize is that most workers in the United States, including Damore, are “at-will employees.” At-will employees can be fired for any reason, no reason, a bad reason, or a made-up reason without any legal repercussions, unless that reason is prohibited by a specific law. For example, it is unlawful for most employers to fire an employee because of that employee’s race, gender, or disability. Unionized employees who work under collective bargaining agreements and most government workers are not at-will employees; these groups have extra rights when it comes to job termination. Thus, absent a legal, contractual, or constitutional violation, Damore would not likely have a claim against Google for firing him.

First Amendment

When a person says Americans have the right to free speech, they are referring to the protections codified in the First Amendment of the United States Constitution. That Amendment states “Congress shall make no law . . . abridging the freedom of speech.” In short, the federal government – and State governments, according to the Supreme Court – is not allowed to tell you what you can and cannot say or penalize you for speaking. However, private companies, like Google, are not bound by the Amendment. Google is free to terminate employees for the views they express, even if those views are intrinsically political, like Damore’s, without exposing itself to a lawsuit brought under the First Amendment.

NLRA

Section 7 of the National Labor Relations Act (“NLRA”) provides, in part, “employees shall have the right... to engage in other concerted activities for the purpose of... mutual aid or protection.” The term “concerted activity” is interpreted very broadly. The National Labor Relations Board, the independent government agency that enforces the NLRA, describes it as “your right to band together with coworkers to improve your lives at work.” Many people mistakenly believe the NLRA only protects employees who are members of unions, but, actually, most private sector employees are covered by the Act. Therefore, it is a violation of this federal law for an employer to fire an employee for complaining to other employees about their working conditions.

Damore writes in his memo, “I’ve gotten many personal messages from fellow Googlers expressing their gratitude for bringing up these very important issues which they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired. This needs to change.” He goes on to say, “open and honest discussion with those who disagree can highlight our blind spots and help us grow, which is why I wrote this document.”

It appears that with this memo – uploaded to Google’s document collaboration tool and discussed on internal company message boards – Damore is expressing his view of a working environment that is hostile to those that believe that Google’s programs and policies regarding diversity are discriminatory and frivolous. That could be considered concerted activity by the NLRB. Indeed, in the 2015 case of Cooper Tire & Rubber Co. v. United Steel, et al., an NLRB Administrative Law Judge held that an employer may not fire an employee for racist taunts directed at a replacement worker from a picket line. Of course, Damore’s situation is different in that he was not involved in a picket line, an unquestionably concerted activity “where a certain degree of confrontation is expected” when he made his comments. However, a former chair of the NLRB under President Obama, Wilma Liebman, has said of Damore’s Section 7 claims: “I think it’s an open question. It’s not a slam dunk either way.”

Title VII

At its most basic premise, Title VII of the Civil Rights Act of 1964 (“Title VII”) made it unlawful for an employer to discriminate against an employee on the basis of his or her race, color, religion, sex, or national origin. Additionally, the law provides, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees... because he has opposed any practice made an unlawful employment practice.”

Throughout his memo, Damore refers to Google’s “discriminatory practices” such as “programs, mentoring, and classes only for people with certain gender or race.” Damore’s perception that these diversity programs discriminate against him, as a white male, is not uncommon. The Harvard Business Review “found evidence that [a company’s promotion of diversity rhetoric] not only makes white men believe that women and minorities are being treated fairly — whether that’s true or not — it also makes them more likely to believe that they themselves are being treated unfairly.”

In a lawsuit, Damore could argue that he made protected disclosures in his memo about the programs he perceives to be illegal discrimination against men and, therefore, he cannot be fired for his comments. As long as the programs maintained by Google to assist advancement by women and minorities are voluntary and inclusionary, as opposed to exclusionary, they are likely allowed under Title VII. It is not clear, relying on Damore’s memo alone, if Google’s diversity programs actively bar the participation of male and white employees or, instead, if the programs are primarily targeted at minority employees.

Even if Google’s diversity programs are perfectly legal, Damore may still be able to make the argument that he reasonably believed the programs were unlawful and, therefore, his termination violated Title VII. The Supreme Court has not adopted a test to determine whether an employee’s opposition to discrimination must be reasonable; therefore, the outcome of the analysis is dependent on the judicial circuit in which the case is brought.

Flip-side

Damore’s situation leads to the question: is Google — legally — stuck between a rock and a hard place? The company’s termination of Damore for his memo exposes Google to legal action from him; however, if it had not fired him, it would have exposed itself to liability from the other direction – Damore’s female coworkers.

Prior to the release of Damore’s memo, Google was already in the midst of a regulatory battle regarding its alleged systemic gender-based pay disparities and the poor treatment of women in Silicon Valley has been consistently in the news.

If Google had concluded that Damore’s memo was protected by either Title VII or the NLRA, and, therefore, they could not legally fire him, female employees bringing sex discrimination complaints could point to Google’s inaction regarding the memo and argue that the company supports the perpetuation of these sexist points of view because it did not make any efforts to discipline Damore for openly expressing them.

In conclusion, Google may have picked the best option from a menu of bad legal choices when it decided to fire James Damore. It will be interesting to watch how this situation plays out.

Written by Sarah Martin.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, August 17, 2017

Perry saves the “mixed case”

When Anthony Perry began working for the U.S. Census Bureau in Suitland, Maryland, in 1982, he never could have imagined that it would lead to a landmark victory for federal employees in the U.S. Supreme Court.

After thirty years of faithful service to the Bureau, Perry developed osteoarthritis. While his supervisor allowed him to take breaks during the day and make up the missed time after hours, Perry filed a series of Equal Employment Opportunity (EEO) complaints alleging discrimination based on race and age.

On June 7, 2011, Bureau managers gave Perry a Notice of Proposed Removal. The Notice alleged that Perry had been absent during regular working hours and paid for hours he had not worked. Perry contested the charges and pointed to the informal accommodation that his supervisor had provided and to his unblemished disciplinary record.

In August 2011, Perry and the Bureau entered into a settlement agreement that required him to serve a 30-day suspension, retire no later than September 4, 2012, and forfeit his discrimination claims against the agency.

After Perry served his 30-day suspension and his retirement took effect, he filed a pro se appeal with the Merit Systems Protection Board (MSPB). An administrative judge (AJ) ordered him to show cause why the challenge should not be dismissed for “lack of jurisdiction.” “Specifically, resignations and retirements are presumed to be voluntary, and voluntary actions are not appealable to the Board,” and “the Board cannot review the same claims over which you entered into a settlement agreement with the agency[.]” Perry responded that the settlement agreement had been coerced; therefore, the subsequent major adverse employment actions were involuntary and he could appeal them under the Civil Service Reform Act (CSRA).

Without holding a hearing, the AJ dismissed Perry’s appeal for “lack of jurisdiction.” In particular, the AJ decided that both the 30-day suspension and retirement were voluntary because they resulted from a voluntary settlement agreement. Perry petitioned the full MSPB for review.

The Board granted Perry’s petition and remanded the case back to the AJ. The Board concluded that Perry had “made a nonfrivolous allegation of involuntariness sufficient to warrant a jurisdictional hearing.”

On remand, the AJ held the required hearing and concluded that Perry “failed to prove that he was coerced or detrimentally relied on misinformation when he agreed to settle his appeals.” Accordingly, the AJ once again dismissed the appeal for “lack of jurisdiction.” This time the Board affirmed the dismissal.

The Board’s decision included a notice that stated in part: “You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit.” Perry, still without legal representation, filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit. That court promptly issued an order directing Perry to “show cause why this petition should not be dismissed for lack of jurisdiction or transferred to the United States Court of Appeals for the Federal Circuit.” The court also appointed a law firm to submit a brief as amicus curiae.

After receiving briefs, the D.C. Circuit decided in 2015 that since the MSPB found it lacked jurisdiction, and it never reached the merits of the discrimination claims, it would transfer the case to the Federal Circuit. Perry, now represented by an attorney, appealed to the Supreme Court.

In 2012, the Supreme Court held in Kloeckner v. Solis that when the MSPB dismissed a mixed case on procedural grounds, the employee could bring her case to the federal district court for both the discrimination and the civil service issues. In 2016, the Supreme Court agreed to hear Perry’s case to decide if the same rule should apply to “jurisdictional” dismissals by the MSPB.

The oral argument at the Supreme Court was notable in part because it was the first case heard by Justice Neil Gorsuch. He questioned Perry’s attorney about how unfair it was that employees could get “de novo” review of the civil service claims in district court, but not in the Federal Circuit. He asked Perry’s attorney to put “aside Kloeckner” suggesting that, following precedent would “just … continue to make it up.” He asked if Perry’s claims could be bifurcated so that the Federal Circuit could hear at least the civil service claim. Even the government’s attorney had to agree that the mixed case statute is “not elegantly drafted.”

Justice Alito provoked laughter by asking, “who wrote this statute? Somebody who … takes pleasure out of pulling the wings off flies?”

In June 2017, the Supreme Court issued its decision. Writing for the majority of seven justices, Justice Ginsberg explained that, “we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present.” She noted how most federal employees make their appeals to the MSPB without representation by a lawyer.

“An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of discrimination prohibited by another federal statute[.]” The Court cited the mixed case statute, but missed citing 5 USC § 7701(c)(2)(C) which says, “the agency’s decision may not be sustained ... if the employee … — (C) shows that the decision was not in accordance with law.” If an employee is fired (or suffers another adverse action directly appealable to the MSPB), that employee can prevail by showing that the action violates any law at all.

The Court recalled, as it did in the Kloeckner case, that, “the CSRA provides diverse procedural routes for an employee’s pursuit of a mixed case.” The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office. Indeed, this is one of the oft misunderstood aspects of the mixed case. If an employee chooses to raise a discrimination claim in a mixed case using any administrative route, that employee preserves all the available civil service and discrimination claims for de novo consideration by a district court.

In the end, the majority held that Congress made no distinction between MSPB dismissals on procedural grounds and those on the merits. The actual legal authorization to decide a case arises from the employee’s allegations, not from the MSPB’s finding of “jurisdiction.” Thus, the Supreme Court directed the D.C. Circuit to transfer Perry’s case to district court so that all of his claims could be considered together.

Justices Gorsuch and Thomas dissented. Writing his first Supreme Court dissent, Justice Gorsuch said that Perry must appeal his civil service claims to the Federal Circuit, and pursue his discrimination claims through the normal agency process and to district court if Perry so chooses. In essence, Perry’s claims would no longer be “mixed.” If the statute needs fixing, Justice Gorsuch says, only Congress can do that.

The majority opinion correctly responded that the statute does not provide for such claim splitting. To the contrary, Congress specifically directed that mixed cases can go to the district court. The district court’s jurisdiction arises from the allegations made to the MSPB, and the statute places no conditions on the employee’s ability to bring discrimination claims to district court.

The Supreme Court’s decision in Perry helpfully clarifies the law and simplifies the procedure for federal employees. It makes clear that the MSPB’s jurisdiction arises from the employee’s allegations and not from any findings by the AJ. The MSPB will need to re-write its boilerplate language for jurisdictional orders to reflect this law of the land.

However, the Perry decision does not resolve all the outstanding issues about mixed cases. Does a discrimination claim create a “mixed case” – appealable directly to district court – when the Civil Service Reform Act claim arises under the Whistleblower Protection Act (which is part of the CSRA)? The Tenth Circuit said yes in Wells v. Shalala. The Ninth Circuit thereafter said no in Kerr v. Jewell. Kerr appealed to the Supreme Court which earlier this year declined to hear her appeal.


By Richard Renner



This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Friday, August 11, 2017

If the Clearance Level of My Job Changes, Do I Have Any Rights?

You’re in a job that doesn’t require a clearance and, all of a sudden, you’re notified that your job has been reclassified and now you must either apply for a clearance or move to a non-sensitive position. You’re given a few weeks to finish the application. Do you have any rights?

Two years ago, the federal Office of Personnel Management issued new regulations to systematize the sensitivity designation of all positions in the federal government. These regulations fulfill presidential directions issued through Executive Order 10450.

Every new position in the federal government must have a sensitivity designation established by the “position designation” protocol set forth in these regulations and implemented by the Office of the Director of National Intelligence (ODNI) and the Office of Personnel Management (OPM). Significantly, the 2015 regulations also required that agencies reassess all current positions by July 6, 2017. Because a position’s sensitivity designation affects what sort of clearance the person holding the position must have, this reassessment has forced some federal employees to qualify for clearances or be removed from positions they have held for years.

Each federal agency decides whether a clearance is required for every position, whether the position is newly-created or has been on the books for decades. They do this by assigning a “sensitivity designation” to a position, using standards set forth in 5 C.F.R. § 1400 and implemented by OPM through a Position Designation Automated Tool.

Under E.O. 10450, Security Requirements for Government Employment, a national security position is defined as, “any position in a department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security.” The mandated “position sensitivity designation” must reflect “the responsibilities and assignments of the position as they relate to the impact on the national security, including but not limited to eligibility for access to classified information.” 5 C.F.R. § 1400.101(b).

National security positions must be designated, based on the degree of potential damage to the national security, as either Noncritical Sensitive, Critical Sensitive, or Special Sensitive. 5 C.F.R. § 1400.201. The 2015 regulations set a consistent standard to be applied across the government for the way national security positions are designated.

To hold a Noncritical Sensitive position a person must be eligible for access to Secret, Confidential or “L” classified information or, alternatively, the position must simply have “the potential to cause significant or serious damage to the national security.” 5 C.F.R. § 1400.201(a)(1).

A Critical Sensitive position, most often requiring a Top Secret or “Q” clearance, is one that has “the potential to cause exceptionally grave damage to the national security.” 5 C.F.R. § 1400.201(a)(2) The regulations detail twenty types of positions that might qualify as Critical Sensitive, including those “involving development of war plans . . . military operations, or critical . . . items of war” (§ 1400.201(a)(2)(iii)), those “in which the occupants have unlimited access to or control of access to designated restricted areas” (xix), and those who investigate other Critical Sensitive positions (xxi).

Special Sensitive positions are positions that require eligibility for access to Sensitive Compartmented Information (SCI), or other intelligence-related Special Sensitive information, as in Top Secret Special Access Programs (SAP). 5 C.F.R. § 1400.201(a)(3).

Whether a position is designated as Noncritical Sensitive, Critical Sensitive, or Special Sensitive determines the clearance level required for a person to hold that position. If an existing national security position is now determined to require a higher level clearance, the agency is given only 14 days to initiate the new investigation of the incumbent to determine whether he or she may be granted the higher level access newly required for the position. The regulations make clear that the agency may require the incumbent to submit to the new investigation, providing updated information and releases. It is up to the agency to decide whether the incumbent may continue to hold the sensitive position pending the new investigation. An incumbent who is denied the higher-level access that is newly determined to be necessary is entitled to all of the procedural rights available to anyone denied a clearance, including notice of the specific reasons for the decision and an opportunity to respond. 5 C.F.R. § 1400.301(c)(1).

Nothing in these regulations, however, provides for the incumbent to challenge the re-designation of a national security position as requiring a higher (or lower) clearance. Indeed, the Federal Circuit in Kaplan v. Conyers, relying on the Supreme Court’s decision in Navy v. Egan, held that, “absent congressional action, judicial review of national security matters is generally prohibited.” In Kaplan, the court concluded that this prohibition extended to a challenge to the security designation of a position.

Nevertheless, an affected employee who believes that the security designation of a position has been changed in order to discriminate or retaliate for prior EEO activity may challenge the change through the Agency’s own internal EEO process. Alternatively, if the affected employee claims that a security designation is a reprisal for the employee’s protected disclosure, that employee could use the whistleblower protections established by the Intelligence Authorization Act. The time limit to initiate the federal-sector EEO complaint is 45 days. The Intelligence Authorization Act allows 90 days for a whistleblower complaint.


By Mary Kuntz


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Wednesday, July 12, 2017

Per Se Violations Do Not Require Any Showing Of Causation

On June 13, 2017, the DC Bar’s Labor and Employment Section presented a panel discussion on Causation Standards in Employment Law. As one of the panelists, I prepared a paper and presented recent developments in per se violations, whistleblower laws, and state statutes and tort claims.

Causation standards matter. These standards determine how easy or difficult it will be for a party to prove its case. In the typical employment discrimination case, the person claiming discrimination has to prove that their protected characteristic (race, color, gender, national origin, religion or disability, for example), was what caused, or motivated, their adverse treatment.

Some claims, however, require no proof of causation whatsoever. These are called “per se” violations because the conduct itself is unlawful – regardless of the true motivation. In federal sector discrimination cases, the EEOC has held that any statements or conduct that discourage employees from reporting discrimination per se violate the law.

For example, in Williams v. Department of the Army, a supervisor told his subordinate “that it would not be in Complainant's best interest to file an EEO complaint.” Even if the supervisor was saying this to provide a helpful warning to the employee, it is still unlawful because it could discourage participation in the EEO complaint process. EEOC has called such comments, “a flagrant attempt to dissuade Complainant from engaging in the EEO process by suggesting or threatening that he [or she] could suffer unpleasant consequences if he [or she] pursued his EEO claims.” The Commission has found that even if a complainant successfully initiates the EEO process in spite of such threats or suggestions, the complainant is still aggrieved.

The National Labor Relations Act (NLRA), 29 U.S.C. § 157, guarantees an employee’s right to share information with co-workers. It does this by saying, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ..” These are called the “Section 7” rights and employees who exercise these rights are engaging in Section 7 activity.

The NLRA’s prohibited practices are in 29 U.S.C. § 158(a):
It shall be an unfair labor practice for an employer

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; [...]

(3) by discrimination . . . to encourage or discourage membership in any labor organization[.]
The National Labor Relations Board (NLRB) investigates and adjudicates claims of violations of this law. On March 18, 2015, the NLRB General Counsel issued a memo explaining how the Board may find that employment policies, typically those found in employee handbooks, can be per se violations of the law.

The most obvious way such a policy would violate Section 8(a)(1) is by explicitly restricting protected concerted activity; by banning union activity, for example. Even if a policy does not explicitly prohibit Section 7 activity, however, it will still be found unlawful if:
  1. employees would reasonably construe the employer’s rule to prohibit Section 7 activity;
  2. the rule was promulgated in response to union or other Section 7 activity; or
  3. the rule was actually applied to restrict the exercise of Section 7 rights.
Employees have a “Section 7” right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives. Thus, an employer's confidentiality policy that either specifically prohibits employee discussions of the terms and conditions of employment—such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses "employee" or "personnel" information, without further clarification, could reasonably be construed by employees to restrict Section 7-protected communications. Examples of unlawful policies include:
  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer's] associates was obtained in violation of law or lawful Company policy).”
  • “Never publish or disclose [the Employer's] or another's confidential or other proprietary information.”
  • “Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • Prohibiting employees from “[d]isclosing ... details about the [Employer].”
  • “Sharing of [overheard conversations at the work site] with your coworkers, the public, or anyone outside is strictly prohibited.”
  • “[I]f something is not public information, you must not share it.”
Similarly, if a whistleblower law protects employees who copy documents they are permitted to access, who disclose them to law enforcement authorities, or who otherwise raise concerns about compliance with the law or public safety, then employer policies cannot restrict or discourage these activities. The Department of Labor has held that copying and disclosing employer documents about illegal activities are protected even if these actions violate an employer’s confidentiality policy. Courts have protected employees' collection and submission of documents for use in evidence, as well as employees' investigations of suspicions of illegality, even “before they have put all the pieces of the puzzle together.

The Securities and Exchange Commission (SEC) has started imposing fines on companies that use confidentiality policies or agreements to deter employees or former employees from making disclosures to the SEC, or even from making whistleblower award claims.
  • SEC v. KBR, April 1, 2015 (KBR paid $130,000 for its violation of Rule 21F-17, which was enacted under the Dodd-Frank Act. KBR had “required witnesses in certain internal investigations interviews to sign confidentiality statements with language warning that they could face discipline and even be fired if they discussed the matters with outside parties without the prior approval of KBR’s legal department.”)
  • SEC v. HealthNet, August 2016 (HealthNet paid $340,000 for including in a settlement agreement a provision that the employee waived any SEC whistleblower award).
On August 23, 2016, OSHA issued a policy against approving settlements that restrain protected activities or discourage employees from collecting lawful awards.

Employers must be mindful of these legal boundaries when they prepare their policy manuals or draft settlement or severance agreements. Employees can exercise their rights more freely when they realize what is protected “per se.”




By Richard Renner.


This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.