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Summary

The applicant, a 29-year-old defense contractor employee, faced security concerns under Guideline E (Personal Conduct) due to multiple incidents of employment terminations and allegations of misconduct. The judge found that the applicant mitigated these concerns through evidence of his reliability and positive work performance, ultimately granting him eligibility for a security clearance.

Under Guideline E (Personal Conduct), the Statement of Reasons alleged the following: Applicant was employed as an HVAC mechanic in July 2014, when he was hired by the company owner. During the pre-employment interview, the type of work was described, but the discussions related to the equipment were non-specific. Applicant felt confident that he could work with the equipment already in use, but once he was actually hired, he found himself with unfamiliar equipment. He attempted to familiarize himself with the equipment, but the workload was very demanding and other technicians were unable to assist him, so the familiarization process during his probationary period was strictly hands-on. In addition, Applicant had a personality conflict with his supervisor who felt Applicant was superfluous to the company’s needs as there was another employee in the same position. In his e-QIP, Applicant noted that he was terminated in October 2014 for performance reasons and not happy with management-employee relationships. During his interview with an investigator from the U.S. Office of Personnel Management (OPM), Applicant added comments about his supervisor’s alcohol issues. Applicant felt he would be fired for no legitimate reason, so he left. In one of his Responses to the SOR, he said that he and the company mutually decided that he would depart during his probationary period, and the departure would not be due to misconduct. Although Applicant heard that he had been fired due to creating a hostile work environment and an aggressive attitude, he denied those characterizations and called them false. There is no documentation in the case file to support a conclusion that Applicant was actually fired (1.a). Applicant was employed as an HVAC mechanic from October 2013 until July 2014. In April 2014, he was issued a letter of counseling based on a complaint from a 50-year-old female administrator who claimed that Applicant had asked her to go to lunch with him 'in a non-professional manner,' construed by the woman as 'sexual advancements' or 'sexual harassment.' Applicant denied he ever sexually harassed the woman and explained that he was simply being cordial by inviting her to join him at a local fast-food establishment. The purported actions and statements by Applicant are not known, and there is no evidence to support her accusations that they were sex-related. Moreover, there is no report of inquiry or investigation from the employer to support the allegations. Applicant believes the allegation was fabricated to discredit him. During his OPM interview, Applicant disputed the allegations made against him and noted that in July 2014 he left under favorable circumstances and the staff even threw him a farewell party (1.b). Applicant worked for one particular company in Afghanistan on two separate occasions. During the initial period, he was terminated in February 2012 for failing to submit the required security clearance background documentation in a timely manner, claiming simply that he had forgotten to do so. He was home on leave at the time, and he received an e-mail from his employer informing him of the dismissal. Seven months later, he was rehired by the company. Applicant and his HVAC foreman/supervisor did not get along, with each claiming misconduct by the other. But while Applicant never reported his HVAC foreman/supervisor’s actions, his HVAC foreman/supervisor did report him. On January 20, 2013, Applicant received a final written warning from his HVAC foreman/supervisor. It accused Applicant of purposely not following the directives provided to him by his HVAC foreman/supervisor; wasting manpower hours, materials, and a misappropriation of government funds; seriously damaging the public relations between the company and its client; a lack of knowledge, experience and skillset to do his job; constant insubordination; and the absence of leadership or skillsets required for his position. Applicant’s HVAC foreman/supervisor concluded that Applicant’s actions constituted 'disorderly, abusive, or indecent conduct; use of abusive or inappropriate language . . . committing immoral, illegal, or violent acts; violating federal, state, or local laws, regulations, or Company procedures; making a false statement, either oral or written, to a supervisor, other employees of the Company, the Company’s customers, or government agencies; and failing to perform work of an acceptable standard, being inattentive to job performance.' (1.c). Applicant worked for another particular company on two separate occasions. During the initial period, he was terminated in October 2007 for unsatisfactory performance. Applicant acknowledged that in 2007 he did not possess the expertise and proficiency to work as an HVAC mechanic. He was called into the office of his supervisor one day and simply fired. Once he had gained the knowledge and experience to be an effective HVAC mechanic, the same company hired him back in August 2013 (1.d). In March 2016, when Applicant completed his e-QIP, he responded to some questions pertaining to his employment record. The questions in § 13C asked if, in the last seven years 'at employment activities that you have not previously listed,' he had: been fired from a job; quit a job after being told he would be fired; left a job by mutual agreement following charges or allegations of misconduct; left a job by mutual agreement following notice of unsatisfactory performance; or received a written warning, been officially reprimanded, suspended, or disciplined for misconduct in the workplace, such as violation of a security policy? Applicant answered those questions with a 'no.' The SOR alleged that in so doing, Applicant deliberately failed to disclose the relevant information found in SOR allegations ¶¶ 1.a. through 1.c. In fact, Applicant clearly indicated in § 13A of the e-QIP that he had been terminated from the position discussed in SOR ¶ 1.a. for performance reasons and left by mutual agreement following notice of unsatisfactory performance; and that he had been disciplined in the position discussed in SOR ¶ 1.b. for bothering a female co-worker. As for the allegation associated with SOR ¶ 1.c., as noted above, although the SOR alleged that Applicant had been terminated 'in about 2013,' there is no documentation from the company to support that allegation, and Applicant has been steadfast in claiming that he had already resigned and was not aware that he had supposedly been fired (1.e).

The judge granted the clearance. The government raised disqualifying conditions E2.A5.1., E2.A5.2., E2.A5.3.. The judge applied mitigating conditions E2.A5.1., E2.A5.2., E2.A5.3.. The decision turned on the following: The applicant provided substantial evidence of positive work performance and reliability in critical roles supporting military operations; Character references from supervisors highlighted the applicant's trustworthiness and integrity in high-stakes environments; The judge found insufficient evidence to support the allegations of misconduct and determined that the applicant's admissions did not warrant denial of clearance.

Why the Applicant Prevailed

• The applicant provided substantial evidence of positive work performance and reliability in critical roles supporting military operations.
• Character references from supervisors highlighted the applicant's trustworthiness and integrity in high-stakes environments.
• The judge found insufficient evidence to support the allegations of misconduct and determined that the applicant's admissions did not warrant denial of clearance.

Conditions Referenced

Key Rule Quoted

“The Government initially has the burden of producing evidence to establish a potentially disqualifying condition under the Directive, and has the burden of establishing controverted facts alleged in the SOR.”

Procedural Posture

• SOR issuedOct 13, 2017
• Answer filedNov 22, 2017Applicant elected to have the case decided on the written record.
• Hearing held—No hearing was held; decision made on the written record.
• Decision dateJun 26, 2018

Cite For

• Mitigation of Personal Conduct Concerns Under Guideline E
• Importance of Character References in Security Clearance Cases
• Burden of Proof on the Government in Establishing Disqualifying Conditions