In an interesting legal variation of the normal cause of action for improper security clearance suspension, a case was filed last week in the United States District Court, Eastern District of Virginia alleging violations of discrimination and Whistleblower protection laws. Administrative remedies were exhausted by the plaintiff, which led to this lawsuit.
The plaintiff (EK, for reference) was a long-standing employee for the DEA from 1996 until April of 2020, serving in various capacities with the agency. The complaint points out that a distinguished part of EK’s career was his involvement in development and implantation of the Cellular Abductor Tracking System (CATS), a tool used to glean information from devices surrounding the agency device, if and when the information or resource was captured by the target.
In 2017, EK was diagnosed with a brain tumor, which required ongoing medical treatment. The condition impacted EK, as asserted in his complaint, and he qualified as disabled under the Americans with Disabilities Act. This led to his request to be transferred nearby Duke Medical Center in North Carolina, the source of his treatment. Based on the above reasoning the DEA approved a transfer for EK to Fort Bragg, NC to work on the CATS program in a secure environment. The complaint states:
Access to Fort Bragg itself is restricted and because the base houses the Army Intelligence and Security Command (INSCOM), Fort Bragg has areas within the base itself that limit entrance to those with the requisite security clearance level. EK had a Top Secret Sensitive Compartmented Information (TS-SCI) Clearance. When EK entered his work area, it was segregated, and access was strictly limited to persons like himself who held the topmost clearance. To illustrate the high level of the program, CATS program was housed in the Ground Intelligence Support Activities (GISA) Central space, an appropriately designated Secure Compartmented Information Facility (SCIF).
EK was also given the proper equipment to work on the program from home via a telecommuting arrangement.
The DEA subsequently contracted with a company to help develop the CATS program. This award went to Cherokee Nation Technology Solutions (CNTS) under provision of the Small Business Administration, which gives preference to minority owned businesses (Native American in this case). This is where EK alleges that CNTS was shortly thereafter removed from the contract and replaced with other contractors who had former DEA management at their helm. EK further asserted that this behavior violated federal conflict of interest laws, as well as prohibitions against personal service contracts as set forth by the Federal Acquisitions Regulation. EK filed a complaint with the FBI regarding the above and according to the lawsuit; he wasn’t alone as a concerned employee. That employee, according to EK, was removed from his position in the DEA shortly after the complaint with the FBI was filed.
Subsequent to the concerns expressed formally by EK as to the agency’s behavior, the decision was made to shift the CATS program back to Virginia from Ft. Bragg. At this point, EK invoked the ADA accommodations that were made previously by the agency so that he could work on the program near his treatment. After an internal investigation, senior officials at the DEA, according to EK, determined that reasonable accommodations were no longer necessary for him to work at Ft Bragg. EK asserted that during the investigation, he was questioned by improper sources who didn’t follow correct Fitness For Duty Evaluation procedures. The complaint summarizes:
The Agency appeared to conflate its possible authority to remove EK from leadership over the CATS program, with the transfer of EK back to Headquarters. Had EK simply been reassigned to a position in North Carolina, the Agency may have been able to make at least a pretextual showing that this served some need of the Agency. Instead McGuire and the Agency insisted EK return to Headquarters, which even without the disability accommodations issue would have run contrary to the Agency Career Progression Guide, which requires only one Headquarter tour while in the GS-14 Supervisory Special Agent rank. The significance was clear, McGuire and the DEA wanted to force EK to make a choice between his medical treatment and its life saving nature and his employment.
In reality, the move to relocate CATS had one purpose and one purpose only, to force EK from the Agency as part of a retaliatory scheme to punish EK for complaining about the corruption inherent in the award of CATS by senior DEA employees to their former colleagues who were now in private industry.
The complaint asserted that EK was downgraded on his performance reports and harassed repeatedly about his medical condition. EK and the agency apparently then went back and forth through Equal Employment Opportunity (EEO) administrative channels, in which EK was eventually told again, he had to move back to Virginia. As a result, EK alleges he was constructively forced to retire, seven years earlier than expected.
In essence, therein lies the basis for the lawsuit. The DEA, according to EK, didn’t follow proper procedures nor substance under federal disability law or agency policies after he complained about a contract award that he felt was improper and a conflict of interest. The defendant, DOJ, will obviously file an answer to this complaint, and it will be compelling to see how much or little detail it contains.
From a security clearance perspective, one of the things that was most interesting about the case was, ironically, found in a footnote amidst the complaint:
Notably, The DEA’s own policies on the interactive process required the agency to expand its search outside DEA to include the entire Department of Justice in its search for vacancies suitable for Katz. The DEA agency internal manual on the interactive process states in relevant part, “If there is no equivalent level position vacant (or anticipated to be vacant) within DEA that is in the same commuting area as the employee’s current position, the decision maker and Accommodation Coordinator shall, with the assistance of HR, widen the search to include vacancies in the entire U.S. Department of Justice (DOJ) that are within commuting distance of the employee’s office. If, after widening the search to include DOJ vacancies, there is no equivalent level position that is in the same commuting area as the employee’s current position, the decision maker and Accommodation Coordinator shall consult with the employee to determine whether the employee is willing to accept a vacant position outside of the employee’s current commuting area. If so, the search shall be expanded to other geographic regions where DEA and DOJ may have vacant positions. In general, as with other transfers not required by management, DEA is not required to pay relocation expenses” There is no indication that such an effort was undertaken at the agency.
Whether the above assertion that no effort was taken by the agency to find suitable positions outside the DEA that qualify, the fact that EK was a TS/SCI holder could strengthen his case in a state as DoD-friendly as North Carolina, if that position was deemed to be a “reasonable accommodation” under the law. If the reader is faced with the same predicament, it would be wise to understand both policy and law as it relates to like employment and reasonable accommodation of those with a security clearance. In other words, have all options been exhausted?