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Federal employee wins OFO appeal at the EEOC. Complainant worked for a staffing agency servicing the Internal Revenue Service (IRS) as a Technical Writer when she filed two Equal Employment Opportunity Commission (EEOC) claims alleging discrimination based on race, sex, parental status, and reprisal. Complainant stated that the IRS performed a background investigation and determined that she was not suitable to access IRS facilities. On the same day, the IRS changed her title to Technical Publisher, requiring complainant to request approval from an editor. The IRS then notified complainant’s staffing agency that she was no longer permitted to perform work on the contract until a final determination was made, despite not needing access to any sensitive or classified information or IRS facilities in order to perform her work. The EEOC dismissed for failure to state a claim, reasoning that they did not have jurisdiction to review the substance of a security clearance determination. The Office of Federal Operations disagreed, noting that the IRS made a determination based on complainant’s suitability, but she was not denied a security clearance. In order to invoke the affirmative defense of the security clearance exception, the agency must raise the defense and show that the position is subject to any requirement imposed in the interest of national security and that the individual has not met that requirement. The Office of Federal Operations reversed and remanded.

Amina W. v. Steven T. Mnuchin, Secretary, Dep’t of the Treasury, Internal Revenue Service, https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2020004690-2020004691.pdf

Kirk J. Angel represents federal employees in EEO investigations and EEOC hearings including OFO appeals. If you are need help with an EEO investigation or an EEOC hearing or appeal, set your free 15 minute consultation with Attorney Angel today! https://theangellawfirm.com/kirk-angel-employment-lawyer