IIQIE I I IISII-I I Report No. 20121205-001932 December 2, Inspector General United States APPROPRIATED FUND EMPLOYEE WHISTLEBLOWER REPRISAL INVESTIGATION I I Department of Air Force 12 122801 089 REPRISAL l. EXECUTIVE SUMMARY We conducted this investigation to address allegations that reprised against (Complainant), and local suspension of access to classi?ed information/areas. Complainant alleged the personnel actions and security clearance determination were taken in reprisal for disclosures of fraud, waste, and abuse made to Agency of?eials, Inspector General (IG), and - Equal Employment Office (EEO). We substantiated the security clearance determination involving suspension of Coniplainant?s access to classi?ed information/areas. We concluded, by clear and convincing evidence, that locally suspended Complainant?s access to classi?ed information/areas in reprisal for (,?omplainant?s disclosures. Accordingly, we did not address these personnel actions in this report. we . take appropriate action to make Complainant whole. In that regard, we noted that the MSPB agreement speci?ed that unless the Agency received new information relevant to the Complainant?s suitability for access to classi?ed infomiation, the Agency would support reinstatement of Complainant?s security clearance and access to classi?ed infonnation as required for performance of Complainant?s official duties. We also recommend appropriate corrective action regarding IO 12 122801 089 II. BACKGROUND Complainant served as a supervisor served as Complainant?s supervisor until nra became Complainant?s supervisor. from began working of Complainant. Evidence supported that the working relationship was initially positive, but by October 2010, became mutually hostile and resulted in several verbal altereations. As will be noted further in the report, 5? cited Complainant?s interactions with z, and others, as evidence of erratic behavior. Between January 2010 and December 20l l, Complainant made allegations to his supervisors, and? and also to regarding alleged time card fraud on the part 0 and environmental violations related to various projects that Complainant was asked to perform. On December 9, 2011, Complainant reported similar allegations of time and attendance violations, environmental law violations, and abuse of authority to the -10. On December 15, 20] 1, Complainant reported alleged time and attendance violations to Subsequent to reporting these violations, suspended Complainant?s access to classified information/areas. On January 1 l, 2012, Complainant ?led a whistleblower reprisal complaint with the Department of Defense Hotline. Officials within the Whistleblowcr Reprisal Investigations Directorate, Inspector General (IG), investigated the matter. SCOPE This investigation addressed only the suspension of Complainant?s access to classi?ed information/areas. We interviewed the Complainant, and eight additional witnesses, including an RMO involved in matters adj udieated by the We reviewed relevant documents and electronic communications. We also reviewed documentary evidence provided by and a related Command Directed Investigation (CD1) completed by officials. 12 122801 089 3 IV. STATUTORY AUTHORITY The IG conducts whistleblower reprisal investigations involving civilian appropriated-fund employees of the Department under Section 7(a) and of Appendix 3 of Title 5, United States Code, ?Inspector General Act of 1978,? as amended. Further, under Directive 5106.01, ?lnspector General of the Department of Defense,? IG receives and investigates such complaints of reprisal generally in accordance with Title 5. United States Code, Section 2302. V. FINDINGS AND ANALYSIS A. Did Complainant make a protected disclosure? Yes. Conimunicalian Regarding Time and A llendance Violations- On December 8, 2011, Complainant reported an alleged instance of time and attendance violation to Speci?cally, Complainant alleged improperly allowed Complainant?s to leave work early by granting? leave under what is commonly referred to as the ?59 minute? rule. Complainant testified he had received time and attendance training regarding granting leave and was instructed there was no such thing as the ?59 minute? rule. testified she confirmed to Complainant there was no such thing as the ?59 minute" rule in the Air Force Instructions (AFI). testified her interpretation was that a supervisor may grant an employee leave if the employee experiences an emergency situation on the way to work or, at the end of the day, if there is an issue the air conditioning breaks down). She informed Complainant that supervisors may grant up to one hour leave for emergencies and that supervisors often misuse this reference and call it the ?59 minute" rule. informed Complainant she would discuss his concerns with testi?ed after meeting with Complainant she spoke with and informed him he had misapplied time and attendance rules. required to take leave when he came in the followin work day. Further,_ testi?ed after her meeting with: she informed of the misuse of time and attendance reported by Complainant, and that corrected the incident by having? take leave. 2 36-85 I Brie/"Periods or Tardiness, may be used by supervisors to grant less than I hour of leave for unavoidable absences, brief periods of early dismissal, and brief periods of tardiness. It is commonly referred to, throughout the Federal government, as the ?59 minute rule. It is also commonly misused throughout the Federal government. 36-815 l, Excused Absence. is an administratively authorized absence from duty without loss of pay or charge to leave. The leave approving supervisor may excuse employees only for the periods and the reasons speci?ed in this chapter. The installation commander or head of serviced organizations is authorized to excuse employees for brief periods for any other reasons that are deemed to be in the best interest of the public or the Air Force. A ?brief period" normally means not more than 4 hours per day. Excused absence differs from administrative dismissal in that it normally addresses individual employees being excused for non?mission related emergency reasons, or for reasons the government encourages such as voting. ?9 I2 12280l 089 4 Additionally, on December 8, 2011, Complainant emailed who assisted with the time and attendance training Complainant previously attended. Complainant inquired about the minute? rule. informed him the ?59 minute? rule is to be used on an individual basis and is not to be used to let everyone go home early. She also said the minute? rule was misused all of the time. told Complainant he must review local policy and, as a supervisor, he probably could not grant the leave. Complainant also sent an email to? on that date and she responded that there is no such thing as the ?59 minute? rule, quoting AFI 36-815, section 8.3. In December of 201 1, Complainant noti?ed? of an additional time and attendance violation involvin 5 employees whom Complainant Complainant told that on a day when Complainant was absent from work the employees left early and did not reflect their early departures on their time cards. Complainant identi?ed the employees as On December 15, 2011, Complainant met with and informed him of AFI 36-815 violations he previously reported to . testified he spoke with about the ?59 minute" rule and she informed him that he had discretion to grant leave as but allowing employees to leave early as part of a ?59 minute? rule may be a technical violation of the AFI. Additionally, on December 15, 2011, Complainant informed additional 36-815 violations. Specifically, that claimed hours not worked on their respective time card submissions. The investigation produced no evidence to support Complainant?s allegations regarding_ and . Therefore we concluded Complainant?s disclosure in this instance was not reasonable. Complainant believed the information he disclosed regarding violations of 36-815 were reasonable and non?frivolous. Complainant?s belief was reasonable in that? early release from work was improper. Further, Comp ainant?s belief was reinforced by and actions requiring? to take leave to account for the time. Although it appears may have been within his rights to -rant the leave under AFI 36-815 it is clear from the actions taken rcquiringi to take leave) that all parties involved believed the time off was not authorized. 'l'hus, Complainant had a reasonable belief that a time and attendance violation had occurred. Communications Regarding Environmental Violations In February 2011, Complainant informed of environmental violations regarding the cutting of a hole in the wall for office prior to obtaining an asbestos report. Speci?cally, Complainant reported he was directed to cut the hole in of lice to support a Secret lntemet Protocol Router Network cable, without first completing an Air Force Form 332, Civil Engineering Work 12 122801 089 5 Request, and without obtaining asbestos test data; both of which Complainant believed were necessary/.3 On December 8, 201 l, Complainant reiterated his environmental violation concerns to Moreover, Complainant?s communications were specific and reasonable given his understanding of the facts and regulations in place applicable to the above situations. Complainant?s communications involved matters outside his normal duties and were made to someone beyond the wrongdoer who could remedy the wrong. to- and EEO On December 9, 2011, Complainant testified he reported to- IG the same issues that he had reported to? Complainant testi tied he was told by a ?Colonel with the to take his issues to the Equal Employment Opportunity Office (EEO). Complainant said he went to EEO on December 10, 2012, and was informed by that there was nothing EEO could do at that time. Accordingly, disclosures to an are protected. Communications to On January ll, 20l2, Complainant ?led a complaint with the lG llotline. In that complaint he outlined AFI time and attendance violations and environmental issues outlined above. The communication was made to IG, and, accordingly, disclosures to an IG are protected. B. Was Complainant the subject of an actual or threatened security clearance determination action? Yes. Suspension to Classi?ed Irgformation/Areas On December 22, 201 1, classi?ed information/areas. he had related to Complainant?s suitability. 201 1, informed him that Complainant expressed . The suspension speci?ed that Complainant locally suspended Complainant?s access to indicated the suspension was due to trust issues also stated that on December 8, would be required to 3 Air Force Instruction 32-100 does not specifically require a Form 332 be filed; however, it does state designated personnel should submit work requests to civil engineering and it will determine the necessary documentation and establish the appropriate type of work order. 12 122801 089 6 Notification of Suspension of A ccess On April 30, 2012, administered a second ?revised" local suspension of Complainant?s access to classified information/areas. indicated the sus ension was due to Complainant?s Complainant's inappropriate comments directed at subordinates; and Complainant?s failure to safeguard access to government information systems and his failure to follow proper Operations Security (OPSEC) procedures.? Suspension of access to classi?ed information/areas is a personnel security determination. C. Could the protected disclosures have been a contributing factor in the Agency?s decision to take, not take, threaten to take, or threaten not to take the security clearance determination action? Yes. Communications to Human Resources testi?ed he had no knowledge Complainant spoke with_ regarding time and attendance and environmental issue. Communications to_ and EEO testified he had no knowledge Complainant ?led complaints with IG. further testified he had no knowledge Complainant ?led a complaint with the EEO office. Communications (0 Agency Officials testified that on December l5, 2011, Complainant informed him of time card fraud that was occurring on the base. Accordingly, i had knowledge of Complainant?s December 15, 2011, protected disclosure. The first personnel security determination occurred on December 22, 2011 7 days after Complainant?s disclosure to i on December 15, 201 I. The second personnel security determination occurred on April 30, 20l2 I37 days after the December I5, 20! l, disclosure. The personnel security determination occurred between 1 week and 4 months, respectively, after Complainant?s December 15, 201 l, protected disclosure. Accordingly, a reasonable person could conclude that the disclosure was a contributing factor in i decision to take the personnel security determinations. l2 12280l 089 7 D. Does clear and convincing evidence indicate that the same actions would have been taken against Complainant absent the protected disclosures? No Suspension of A ccess to Classified Information/Areas. December 22, 2011. and Notification of Suspension of Access, April 3 0, 2012. Due to similarity, we analyzed the two personnel security clearance determinations together. Deficiencies in the reasons for local suspension of access to classified information testified that in December 2010, one year prior to suspending Comp1ainant?s access to classi?ed information/areas, be consulted with lainant?s suitability to hold a security clearance. for personnel at_ At that time, that erratic behavior or drug use could serve as the basis for suspension. further advised i that without a positive urinalysis an employee having spats with other employees was not enough evidence to establish a Security Information File (SIF). told? to consult with the personnel office for advice and to ?get back to him.? Three months later (March 201 1), asked whether he could order Complainant to undergo a mental health evaluation. advised he could not order the examination and that only a physical examination was a requirement for Complainant?s position. The Agency made no requirement on Comp ainant?s physical forms that he must possess mental or emotional stability to maintain employment. testified after she informed about the physical forms not Complainant to possess mental or emotional stability, she received an email from- stating that Complainant?s access had been suspended based on the security clearance guidelines that state that Complainant must possess mental and emotional stability to maintain a security clearance. testified she later learned the CD1 concluded that could not require Complainant to undergo a mental health evaluation. She testi?ed told her he would reissue a new letter to Complainant and merely recommend a mental health evaluation and not require it. took no further action after she informed i that mental stability was not a requirement of Complainant's position. regarding testi?ed for believed Complainant was a danger to himself or he believed sufficient grounds based On December 13, 201 LS again consulted with suspension of Complainant?s access to classi?ed infomied him Complainant had filed an EEO complaint against and that others. At that time, informed existed to suspend Complainant?s access to classified information/areas. his advice to on i assessment that Complainant was exhibiting ?bi7arre? behavior; had personnel issues with subordinates and supervisors, and was l2 l2280l 089 8 expressing of stress. asked no further questions of? at that time. consulted with both and regarding suspending Complainant?s security clearance. Notwithstanding advice, the established that in the December 22, 201 1, ?Noti?cation of Suspension of Access,? directed temporary suspension of Complainant?s access to classi?ed information/areas pending a review by a quali?ed mental health provider. wrote that he would make a decision to open a Security Incident File (SIF) to the U.S. Air Force Central Adjudication Facility (AFCAF) based on the mental health evaluation, Com lainant?s willingness to receive treatment, and Complainant?s future duty performance. further directed that on completion of the mental health evaluation, and a ?favorable or non- favorable recommendation from access/unescorted entry may either be reinstated or revoked permanently by the In the December 22, 201 l, ?Noti?cation of Suspension of Access to All Classi?ed Information/Areasfa referred to situations and eon?icts that he believed led in part to Complainant?s bizane behavior. a stated he received information from regarding Complainant?s behavior and he included that language in the December 22, 201 l, ?Noti?cation of Suspension of Access to All Classi?ed Information/Areas.? Specifically, wrote that Complainant was ?exhibiting of stress which led to disruptive, verbally violent, and inappropriate behavior.? This was not the ?rst time there was a documentation issue regarding Complainant. In April 201 l, administered Com lainant his annual evaluation. Complainant grieved the results of that evaluation to who after consultation with was advised there was not enough documentation to support Complainant?s lowered rating. As a result, reviewed Complainant?s grievance and increased the ratings in every area except one. On March 16, 2012, completed a into allegations concerning abuse of authority by and other supervisors within . As reported in the CDI investigation, there was no mental health requirement in Complainant?s physical form documentation when he transfened from another job, and it was not added when he came to? It was also established in the that a? cannot mandate a mental health evaluation for a civilian employee. The concluded that, as th?, it was withina prerogative to suspend Complainant?s access to classi?ed information/areas based on exhibited qualities outlined in the Ad'udicative Guidelines for Detemiining [Eligibility for Access to Classi?ed Information. concluded abused his authority by stipulating that the only way Complainant?s security clearance would be ?re-instated is as the result of a successful mental health evaluation.? As a result,? removed the mental health evaluation requirement as part of the April 2012, ?Notification of Suspension of Access." i testified he believed Complainant?s behavior supported the suspension of Complainant?s access. a testi?ed Complainant exhibited ?bizarre? behaviors - I2 122801 089 9 in and out of the workplace, that Complainant had difficulty getting along with fellow employees, that employees were afraid of Complainant and locked the otlice door because of that fear, and that he suspected Complainant was abusing drugs. However, as mentioned before could not provide any documentation to support these allegations. also testified he discussed Complainant's potential drug use with however? could not produce evidence that Complainant was a drug user. We found insu?icient evidence to support that Complainant?s behaviors breached any of the guidelines for determining eligibility for access to classi?ed infonnation/areas as set forth in 32 CFR 147, ?Adjudicative Guidelines for Determining Eligibility for Access to Classified lnfomiation.? As established in the CD1 and testified to by Guidelines and I were the focus of behaviors and conduct associated with suspending Complainant?s access to classi?ed information/areas. Guideline relates to ?Personal Conduct? and Guideline relates to ?Emotional, Mental and Personality Disorders.? In Guideline I the area of concern that can impact eligibility for a security clearance relates to emotional, mental, and personality disorders that can cause a signi?cant deficit in an individual's social and occupational These disorders are of security concern because they may indicate a defect injudgment, reliability, or stability. The areas of concern as set out in Guideline I include: (1) An opinion by a credentialed mental health professional that the individual has a condition or treatment that may indicate a defect injudgment, reliability, or stability; (2) Information that suggests that an individual has failed to follow appropriate medical advice relating to treatment of a condition, failure to take prescribed medication; (3) A pattern of irresponsible, aggressive, anti-social or emotionally unstable behavior; (4) Information that suggests that the individual's current behavior indicates a defect in his or her judgment or reliability. We found no evidence to support concerns 1 or 2. As to conditions 3 and 4, testi?ed the ?bizarre behavior" he relied on to suspend Complainant?s access consisted of wild mood swings such as going ?om happy to tears in a ??een minute conversation; saying someone you hired in_ is the greatest employee you have ever had and then, approximately one year later, saying that same person is the worst employee they have ever had; paranoia in that? stated Complainant believed an investigation, that occurred in November of 2010. regarding another employee was somehow related to him; that on March 16, 201 1, Complainant dialed the telephone number of one individual while he was engaged in an argument with an employee so the conversation could be overheard; and a suspicion that Complainant was using drugs (although? could produce no evidence to support that claim). When queried as to why he did not document these ?bizarre? behaviors in either the December 22, 2011, or April 29, 2012, memo to support Complainant's - l2 122801089 10 suspension,? testified he had been ?hamstrung? on documenting anything because Complainant grieved everything that was documented. further testified he believed his chain of command did not want documentation of these things for fear that there would be complaints ?led by Complainant. testified he received no support from the Civilian Personnel Office or his chain of command when it came to dealing with Complainant. testified_ told him that he had handled the issues regarding Complainant correctly; but he was going to order a CD1 to throw Complainant a bone and so, ?maybe Complainant would not file a bunch of IG complaints.? testified that, in hindsight, he made a mistake trying to handle Complainant?s suspension locally and he should have gone straight to AFCAF with bizane behavior. Guideline sets forth several areas of concern as it relates to security clearances. These areas are: untrustworthy, unreliability, lack of candor, dishonesty, or tmwillingness to comply with rules and regulations. It goes on to set out conditions that could raise a security concern and these include: (1) Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances; (2) The deliberate omission, concealment, or falsi?cation of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment quali?cations. award benefits or status, determine security clearance eligibility or trustworthiness, or award ?duciary responsibilities; (3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination; (4) Personal conduct or concealment of information that may increase an individual?s vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail; (5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency; (6) Association with persons involved in criminal activity. We found no evidence to support condition fact, as to condition 5, several witnesses testified that Complainant insisted on following laws, rules, and regulations. As to condition 1, testified he received information from co-workers that Complainant could not get along with others and that two employees were physically afraid of Complainant. Witness testimony and Agency documentation supported, in part, belief regarding Complainant?s difficulty getting along with fellow -F-9- l2 122801089 ll employees. Speci?cally, whom Complainant has alleged reprised against him, testified two former employees, did not get along with Complainant. testi?ed he believed the problems resulted from Complainant?s leadership style. further testi?ed Complainant and? engaged in arguments that escalated to screaming matches and accusations of exchanged racial epithets. testified that in 2008, and i con?ded to him that they were having difficulties working for Complainant and both were contemplating leaving_ which they eventually did. i testified Complainant had di?iculty getting along with subordinates as well as supervisors. Although Complainant had dif?culty getting along with co-workers, and he apparently had this issue for several years, no steps were taken to rectify the situation until December of 2012, when Complainan?a and access to classi?ed information/areas were removed. These actions took place within days of Complainant making protected disclosures. asserted that other employees feared Complainant. and the only employees identified by? as fearing Complainant, testified that neither of them locked the office door because they feared Complainant. testified she did not know if she was afraid of Complainant. She stated she was typically a nervous person and she locked the office door because Complainant had and security clearance status and was being accused of? Further, testified she was not afraid of Complainant and did not recall a situation where the door was locked. We found the Agency did not provide clear and convincing evidence that it would have taken the same actions had Complainant not made protected disclosures. We concluded the suspension of Complainant?s access to classi?ed information/areas was in rcprisal and, therefore, is substantiated. VI. CONCLUSION We conclude thati reprised against Complainant by locally suspending his access to classi?ed information/areas in violation of Title 5, United States Code, Section 2302. VII. RECOMMENDATIONS We recommend direct Agency officials to: A. Restore Complainant?s access to classi?ed information/areas. B. Consider taking appropriate corrective action against?. can I Report No. IIQIE l\ ll I I Uvlu I 1212o5-001932 December 2, 2013 Reprisal Investigations I of Defense the Inspector General ?4 Ek Cer Drive A 2 K3