PSH-13-0100

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*The original of this document contains information which is subject to withholding from disclosure
under 5 U.S. C. § 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: August 29, 2013 ) Case No. PSH-13-0100
)
_________________________________________ )
Issued: February 4, 2014
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Hearing Officer Decision
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William M. Schwartz, Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (the individual) to hold an
access authorization1 under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R.
Part 710, Subpart A, entitled “General Criteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.” As discussed below, after carefully
considering the record before me in light of the relevant regulations and the Adjudicative
Guidelines, I have determined that the DOE should not restore the individual’s access
authorization at this time.
I. BACKGROUND
The individual works for a DOE contractor in a position that requires him to maintain a DOE
access authorization. In March 2013, the individual used profanity in an interaction with his
supervisor. He had displayed inappropriate behavior in the workplace in the past and his
management had addressed it in the past. As a result of the March 2013 incident, the individual
1 Access authorization is defined as “an administrative determination that an individual is eligible for access to
classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a). Such
authorization will be referred to variously in this Decision as access authorization or security clearance.
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received a written reprimand. Exhibit (Ex.) 7. He was also placed on a Performance Action
Track to address his behavior and ongoing performance deficiencies. Ex. 6. In May 2013, the
individual participated in a Personnel Security Interview (PSI) that the Local Security Office
(LSO) conducted to discuss the incident. Ex. 10. In June 2013, a DOE consultant psychologist
(DOE psychologist) evaluated the individual and issued a report in which she diagnosed the
individual as suffering from a form of personality disorder that, in her opinion, causes or may
cause a significant defect in his judgment or reliability. Ex. 4. In August 2013, the LSO
informed the individual that there existed derogatory information that raised security concerns
under 10 C.F.R. §§ 710.8(h) and (l) (Criteria H and L, respectively).2 See Ex. 1 (Notification
Letter, August 1, 2013). The Notification Letter also informed the individual that he was entitled
to a hearing before a Hearing Officer in order to resolve the security concerns. Id.
The individual requested a hearing on this matter. Ex. 2. The LSO forwarded his request to the
Office of Hearings and Appeals, and I was appointed the Hearing Officer. At the hearing, the
DOE counsel introduced ten numbered exhibits into the record and presented the testimony of
one witness, the DOE psychologist. The individual submitted 11 exhibits (Exhibits A through
K), testified on his own behalf, and presented the testimony of two psychologists. Transcript of
Hearing, Case No. PSH-13-0100 (hereinafter cited as “Tr.”).
II. REGULATORY STANDARD
The regulations governing the individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including “the nature, extent, and seriousness of the conduct; the
circumstances surrounding the conduct, to include knowledgeable participation; the frequency
and recency of the conduct; the age and maturity of the individual at the time of the conduct; the
voluntariness of participation; the absence or presence of rehabilitation or reformation and other
pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion,
exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and
material factors,” and the impact of the foregoing on the relevant security concerns. 10 C.F.R.
§ 710.7(c). In considering these factors, the Hearing Officer also consults adjudicative
guidelines that set forth a more comprehensive listing of relevant factors and considerations. See
Revised Adjudicative Guidelines for Determining Eligibility for Access to Classified
Information (issued on December 29, 2005, by the Assistant to the President for National
Security Affairs, The White House) (Adjudicative Guidelines).
2 Criterion H concerns information that a person has “an illness or mental condition of a nature which, in the opinion
of a psychiatrist or licensed clinical psychologist, causes or may cause a significant defect in judgment or
reliability.” 10 C.F.R. § 710.8(h). Criterion L concerns information that a person has “engaged in any unusual
conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable, or
trustworthy. . . .” 10 C.F.R. § 710.8(l).
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Ultimately, the decision concerning eligibility is “a comprehensive, common-sense judgment
made after consideration of all relevant information, favorable and unfavorable . . . .” 10 C.F.R.
§ 710.7(a). In order to reach a decision favorable to the individual, the Hearing Officer must find
that “the grant or restoration of access authorization to the individual will not endanger the
common defense and security and is clearly consistent with the national interest.” 10 C.F.R.
§ 710.27(a). “Any doubt as to an individual’s access authorization eligibility shall be resolved in
favor of the national security.” Id. See generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531
(1988) (the “clearly consistent with the interests of national security” test requires that “security
clearance determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT
By his own admission, the individual has had problems getting along with co-workers and
supervisors since at least 1991. Ex. 9 (OPM Report, October 30, 1995) at 4-5. These problems
have occasionally led to displays of anger, most usually loud and not physical, and outbursts in
workplace settings. Id. at 4-5, 8. He has received written warnings and formal counseling for
his behavior.
Three incidents of aggressive and inappropriate workplace behavior, as well as one outside the
workplace, have been documented in the past several years. In 2007, he engaged in an
altercation with two other facility users at the on-site Wellness Center, which involved shouting
and pushing. As a consequence of this outburst, the Wellness Center restricted the individual
from the Center for a week, and reported the incident to the employee relations office, which
forwarded the concern to the individual’s supervisor. Ex. 8 (OPM Report, September 22, 2009)
at 10. In 2008, his supervisor counseled him and issued him a written reprimand for
insubordination and for harassing and yelling at fellow employees. Id. at 10-11. A traffic
incident took place in 2010, in which the individual, driving his car, was close enough to a
bicyclist that the bicyclist reached out and hit the car with either his hand or his bicycle lock.
The individual pursued the bicyclist, who stopped at a fire station. The individual approached
the bicyclist, carrying an opened knife in his hand. He retreated when a fireman shouted that he
was holding a knife. Ex. 4 (DOE Psychologist’s Report of Evaluation, June 30, 2013) at 4-5.
Finally, in March 2013, the individual displayed his anger and used profanity in an interaction
with his immediate supervisor. He was angry about a management decision that affected his area
of expertise, and later expressed remorse at his behavior. Id. at 2. He was issued a written
reprimand due to recurrent inappropriate behavior, specifically for three incidents within the
previous six months in which he “used strong profanity in angry rants about management.”
Ex. 7. He was also placed on a Performance Action Track (PAT) pursuant to site policy, because
his behavior had been identified as continuing performance deficiencies that had been brought to
his attention in his 2011-2012 performance appraisal and had not seen improvement. Id. The
PAT itself referred both to deficiencies in the individual’s 2011-2012 personnel appraisal and to
the 2008 counseling memorandum issued to him. Ex. 6. Initially set to last for two months, it
listed specific expectations placed upon the individual during that period, including no use of
profanity and no yelling or angrily engaging others in any communication. Id. The term of the
PAT was extended for an additional month. A report signed by the individual’s supervisor
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indicates that the individual successfully complied with the terms of the PAT. Ex. K. Upon
completion of the PAT, the individual was subject to a two-year probation period, during which
he faces termination for failure to control his anger. Ex. 10 at 41; Tr. at 44-45.
The individual offered justification for these outbursts. The theme underlying each justification
is that he was a victim and not an aggressor. For example, he describes the 2007 Wellness
Center event as the reaction to two facility users forcing him to get off a piece of exercise
equipment he was using. Ex. 4 at 4, 8. His version of the 2008 incident was that he was
questioning a fellow employee whose behavior the individual found to be inappropriate. Ex. 8
at 6-7. According to the individual, the bicyclist in 2010 had struck and possibly damaged his
car. Ex. 4 at 4. Regarding the March 2013 outburst, he was challenging what he believed to be
an unwise decision taken by unqualified and uninformed management officials, which was later
overturned by their superiors. Ex. 10 at 23, 42. He has acknowledged, in hindsight, that his
behavior in these circumstances was inappropriate. For example, in discussing his use of
profanity in March 2013, he stated that he was “not pleased with how I acted.” Id. at 20. See
also Tr. at 59, 73. Despite the individual’s justifications for his behavior on these occasions, he
does not challenge that these events in fact occurred, and I find that his behavior on these
occasions was inappropriately aggressive under the circumstances.
In her evaluative report of the individual, the DOE psychologist identified the mental health
issue as situations in which he has lost control “in ways which at best concern and disturb others,
and at worst frighten, intimidate, or feel threatening to them.” Ex. 4 at 15. After reviewing a
number of possible disorders that might explain his behavior, the DOE psychologist determined
that the most appropriate diagnosis was Other Specified Personality Disorder, Mixed Personality
Features, as described in the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition (DSM-5). Id. at 13-14, 16. She found that the
individual met the required criteria for General Personality Disorder, including the fact that his
pattern of anger, intimidation, and mistrust began at least by his adolescence; that his emotional
reactions, interpersonal functioning, and impulse control are affected; and that his behavior is an
enduring pattern across a range of situations. Id. at 15. Within that category of disorder, she
determined that the individual has “traits of both paranoid and narcissistic natures”. Id.
According to the DOE psychologist, he meets several criteria for Paranoid Personality
Disorder—such as distrust of others, guardedness, interpretation of actions as threatening, and
counterattacks to those actions—and several criteria for Narcissistic Personality Disorder—such
as sense of self-importance, need for excessive admiration, and lack of empathy—but does not
meet enough criteria for either of those disorders to be diagnosed as suffering from either. Id.
at 16. As a result, her diagnosis of the individual was Other Specified Personality Disorder,
Mixed Personality Features. In her opinion, the individual’s personality disorder causes or may
cause a significant defect in judgment or reliability. Id.
IV. DEROGATORY INFORMATION AND ASSOCIATED SECURITY CONCERNS
As stated above, upon review of the individual’s complete personnel security file, including the
DOE psychologist’s report, the LSO issued a Notification Letter identifying security concerns
under Criteria H and L of the Part 710 regulations. Ex. 1. With regard to Criterion H, the LSO
relies on the DOE psychologist’s opinion that the individual meets the DSM-5 criteria for Other
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Specified Personality Disorder, Mixed Personality Features, and that the individual’s personality
disorder causes or may cause a significant defect in judgment or reliability. I find that there is
ample information in the Notification Letter to support the LSO’s reliance of Criterion H. The
individual’s aggressive reactions to stressful circumstances, particularly those that occurred in
2007, 2008, 2010, and 2013, which are described above, constitute behavior that casts doubt on
the individual’s judgment, reliability and trustworthiness. Adjudicative Guidelines at Guideline I,
¶ 28(a). The DOE psychologist’s conclusion that the individual’s personality disorder is severe
enough to cause a significant defect in judgment, most recently in March 2013, supports my
finding in this regard. Id. at ¶ 28(b).
In support of its Criterion L concerns, the LSO cites the individual’s behavior in the workplace,
beginning with his admission of problems with co-workers in the 1990s, progressing through the
2007 and 2008 incidents, and ending with the March 2013 event, which resulted in his being
issued a written reprimand and being placed on a three-month PAT and a two-year probation for
his angry outburst and use of profanity. This pattern of disruptive and inappropriate behavior in
the workplace raises questions about the individual’s judgment, trustworthiness, and reliability
that may affect his ability to properly safeguard protected information. Adjudicative Guidelines
at Guideline G, ¶ 26(d)(3). Based on the above-mentioned facts related to the individual’s
history of outbursts and aggressive behavior, I find that the LSO had sufficient grounds for
invoking Criterion L.
V. ANALYSIS
In making a determination regarding the individual's eligibility for DOE access authorization, I
have thoroughly considered the record in this proceeding, including the hearing testimony and
the documentary evidence. For the reasons set forth below, I am unable to find that restoring the
individual's suspended DOE access authorization "will not endanger the common defense and
security and is clearly consistent with the national interest." 10 C.F.R. § 710.7(a).
The individual does not dispute that on several occasions he had difficulty controlling his anger
and he reacted unprofessionally at the least and, in some instances, threateningly. At the hearing,
he testified that his behavior was unacceptable during the 2007 Wellness Center scuffle and that
his use of profanity to describe his female supervisors was inappropriate. Tr. at 58-59. He
asserts that through counseling he has gained insight into the reasons for losing his temper in the
past, has learned how to handle his anger and will treat others respectfully in the future. Id. at
52, 61-63.
Criterion H: Illness or Mental Condition
Two psychologists testified on behalf of the individual at the hearing. Each challenged the DOE
psychologist’s opinion that the appropriate diagnosis for the individual is Other Specified
Personality Disorder. One psychologist (Psychologist #1) evaluated the individual in 2011 and
diagnosed him at that time with Adjustment Disorder. Ex. C at 6. At the hearing, she expressed
her opinion that the DOE psychologist’s diagnosis was incorrect for a number of reasons. She
maintained that the individual did not meet the criteria for any form of personality disorder,
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because one criterion of that disorder requires an “enduring pattern of inner experience and
behavior deviates markedly from the expectations of the individual’s culture.” DSM-5 at 646.3
A second criterion for personality disorder is that the “enduring pattern is inflexible and
pervasive across a broad range of personal and social situations.” Id. In Psychologist #1’s
opinion, the individual meets neither of these criteria. As for the first, she testified that the
individual had grown up in a rough neighborhood where fighting in school was “probably
culturally consistent” and “self-defense is probably necessary.” Tr. at 103-04. She also argues
that the individual does not meet the second criterion—the pattern being inflexible and
pervasive—because he has generally received high performance ratings throughout his long
career; such success “in inconsistent with a diagnosis he’s been given of both narcissism and
paranoia.” Id. at 108. She noted that the DSM-5 recommends that personality disorders be
assessed through multiple sessions spread out over time. Id. at 99; DSM-5 at 647. For that
reason, she believed that the most accurate assessment was performed in 2011 by the on-site
medical staff, because that evaluation, in contrast to hers in 2011 and the DOE psychologist’s in
2013, took place over many hours and many sessions and included information obtained from
collateral sources. Tr. at 100. That evaluation concluded that the individual showed narcissistic
and paranoid traits, but no personality disorder, and she concurred with that assessment. Id.
at 95, 105-06.
The second psychologist who testified on behalf of the individual (Psychologist #2) evaluated
him in 2013, after reviewing the DOE’s psychologist’s evaluation. At the hearing, he agreed
with Psychologist #1 that the individual had narcissistic and paranoid traits that did not rise to the
level of a personality disorder. Id. at 150. He administered some of the same psychological tests
that the DOE psychologist did, but interpreted them differently. Id. at 149-51. He conceded,
however, that the individual has “some big-time issues,” including anger issues that arose in his
childhood. Id. at 150-51. He later described these as “long-term traits, but I don’t think we see
adequate criteria to . . . merit it a personality disorder.” Id. at 158. He stated that the individual
has “a problem of some kind,” but the amount of stress in his life means “we don’t know what
we have.” Id. at 172. Finally, he testified that, in his opinion, the individual can control his
behavior through counseling, which will help him develop coping skills. Id. at 158. He believed
that the two-year probation period now gives him the motivation to control his behavior in the
workplace, and advised extending the probationary period to maintain that motivation. Id.
at 159.
After hearing the testimony of the two psychologists who appeared on behalf of the individual,
the DOE psychologist did not alter her opinion regarding her diagnosis of the individual’s
condition. She explained that in her opinion, the individual displayed an enduring, inflexible,
and pervasive pattern of behavior arising from uncontrolled anger—enduring since childhood;
inflexible in that certain situations consistently trigger inappropriate and maladaptive feelings,
responses, and reactions; and pervasive despite the gaps in time when no outbursts were
documented. Id. at 187, 211-12. Consequently, she stood by her diagnosis of personality
disorder.
3 Psychologist #1 actually misstated the DSM-5 criterion when she testified that it required that the enduring
pattern “does not deviate” from cultural expectations. Tr. at 98. In light of the position she espoused, I assume that
this was merely a slip of the tongue.
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The individual contended at the hearing that the DOE psychologist’s diagnosis must fall because
five other mental health professionals evaluated the individual and have not diagnosed him in the
same manner. I find this argument unavailing. Four of these evaluations, including that of
Psychologist #1 and that of the on-site medical staff, occurred in 2011, before the individual’s
most recent outburst in 2013, which management deemed serious enough to place him on a PAT
and on probation with the possibility of termination. While Psychologist #1 posits that the on-
site medical staff evaluation is the most reliable, due to its depth and its investigation of
collateral sources, it predates and therefore does not consider the individual’s most recent
manifestation of his mental health condition.4 The individual also urges that I consider his
behavior in light of its infrequency of occurrence and within the cultural backdrop of his youth.
The DOE psychologist clearly considered those factors at the hearing and maintained that her
diagnosis was nevertheless correct. I cannot find that her diagnosis is based on an incorrect or
incomplete understanding of the facts in this case. I recognize that professional differences of
opinion may exist and, in this case, do exist between the DOE psychologist and Psychologist #2,
the only other mental health professional to evaluate the individual following his last outburst in
March 2013. I note, however, that they appear to agree that, regardless of the diagnosis, the
individual has a mental health condition that detrimentally impacts his interactions with others
under certain stressful circumstances. I therefore find no reason to give less weight to the DOE
psychologist’s diagnosis than to any opinion presented regarding the individual’s mental health.5
With respect to the security concerns cited in the Notification Letter under Criterion H, the
Adjudicative Guidelines identify the following possible mitigating factors: “demonstrated
ongoing and consistent compliance” with a treatment plan for a condition amenable to treatment;
voluntary participation in counseling or a treatment program with a favorable prognosis by a
duly qualified mental health professional; a recent opinion by a duly qualified mental health
professional that the condition is under control “and has a low probability of recurrence or
exacerbation;” and no indication of a current problem. Adjudicative Guidelines at Guideline I,
¶ 29. While I acknowledge that the individual has successfully completed his PAT, it is a
4 Were I to rely on that evaluation, I would also take notice of statements by collateral sources reported in that
evaluation, which illustrate how the individual revises events to present himself in the best light. See, e.g., Ex. 4 at
7-8. I have noted this behavior in the record. For example, when referring to a previous security clearance
suspension that was ultimately resolved in his favor, he reported to an interviewer that it was restored in the
“[s]hortest time I think . . . anybody’s ever lost their clearance.” Ex. 10 at 49. Moreover, regarding the 2010
encounter with the bicyclist, the individual denied that he approached the bicyclist with a knife in his hand, despite
the eyewitness report to the contrary. Ex. 4 at 7.
5
Even if I accepted the position that the individual was best described as having narcissistic and paranoid traits,
that opinion would still raise a doubt as to his eligibility for access authorization. According to the regulations,
information establishing that an individual has “an illness or mental condition of a nature which, in the opinion of a
board-certified psychiatrist, other licensed physician or a licensed clinical psychologist causes, or may cause, a
significant defect in judgment or reliability” raises security concerns. 10 C.F.R. § 710.8(h) (emphasis added). We
have previously held that personality traits or behaviors may form the basis for a Criterion H concern, provided they
“cause[], or may cause, a significant defect in judgment or reliability” in the opinion of a qualified professional. See
Personnel Security Hearing, Case No. PSH-13-0061 (August 22, 2013). See also Adjudicative Guidelines,
Guideline I, ¶ 27 (“Certain emotional, mental, and personality conditions can impair judgment, reliability or
trustworthiness.”) (emphasis added).
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personnel tool and no way constitutes a treatment plan for a mental health condition. The
individual has, however, attended counseling in the past, and resumed counseling about two
months before the hearing. Tr. at 49-50; Ex. I. His present counselor did not testify at the
hearing, but provided his opinion of the individual’s current status in a letter. Ex. I. The
counselor explained that his “therapeutic interventions with [the individual] have centered
around increasing his insight into his behavior and intentions, as well as develop[ing] skills to
more effectively respond to his environment and the people in it.” Id. He stated that the
individual “has been reasonably open to these interventions and has made some stride to improve
his presentation.” Id. Due to the short period of psychotherapy, his opinion was that the
individual’s progress was “guarded,” but would improve to “good” with continued work. Id.
Psychologist #2 testified that, “maybe . . . there’s some good chance” that the individual would
be able to control his behavior in the workplace for three years, until his retirement, “with a lot of
structure and a lot of support.” Tr. at 175-76. After hearing all the testimony, the DOE
psychologist expressed her opinion that the individual’s current therapy is appropriate, but in
light of its short duration, she placed the risk of relapse of workplace outbursts at moderate. Id.
at 215.
The individual himself testified that he will never again lose his temper at work, even after his
probationary period ends; he stated that the risks to his work and to his family are simply too
high. Id. at 231. I recognize the individual’s position, and I believe that he certainly intends to
control his temper for the remainder of his career. He is engaged in psychotherapy that all the
mental health experts deem to be appropriate and effective. Three professionals, including two
who appeared on his behalf, believe he will ultimately succeed in his efforts to control his
behavior; none, however, has given him a favorable prognosis at this time. As of the hearing, his
progress in therapy was “guarded,” and he remains at moderate risk of relapse. Consequently, I
cannot find that he has mitigated the Criterion H concerns that his mental health condition has
raised.
Criterion L: Unusual conduct
Similarly, the individual has not mitigated the Criterion L concerns. While the individual does
not display disruptive and inappropriate behavior on a regularly occurring basis, his outbursts do
occur under certain circumstances, most often when he feels he has not been paid the respect he
is due. It is normal to feel hurt in such a context, but it is unusual to react by lashing out with
profanity, particularly in a workplace setting, or chasing down and approaching a bicyclist
wielding a knife. These reactions demonstrate poor judgment and lack of control of anger,
regardless whether such behaviors are considered acceptable in the culture in which he was
raised. They are unacceptable in the workplace, regardless of his opinion that he is far more
competent than his supervisors. In considering the individual in a whole-person context, I also
note his demonstrated tendency to alter facts in order to place himself in an extremely positive
light. See n.4 above. He is, at least in some situations, an unreliable reporter of events, which
raises in my mind questions about his reliability and trustworthiness.
Among the factors that may serve to mitigate security concerns raised by an individual’s unusual
personal conduct are that “the offense is so minor, or so much time has passed, or the behavior is
so infrequent, or it happened under such unusual circumstances that it is unlikely to recur or does
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not cast doubt on the individual’s reliability, trustworthiness, or good judgment,” that “the
individual has acknowledged the behavior and obtained counseling to change the behavior or
taken positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy,
unreliable, or other inappropriate behavior, and such behavior is unlikely to recur.” Adjudicative
Guidelines at Guideline E, ¶ 17(c), (d). In this case, the individual’s aggressive behavior, while
relatively infrequent, revealed itself quite recently, is of a serious nature, and is likely to recur as
long as he must continue to work for supervisors he believes are incompetent. To his credit, the
individual has engaged in voluntary treatment to address his anger and other issues that cause
inappropriate behavior in the workplace. His therapy is, however, ongoing, and the consensus of
the mental health professionals who evaluated him, or are working with him, since his latest
outburst is that it is too early to conclude that he has his anger under control and will not repeat
his inappropriate behavior in the future. Based on these facts and the opinions of experts in the
mental health arena, I find that the individual has not mitigated the Criterion L concerns.
VI. CONCLUSION
Upon consideration of the entire record in this case, I find that there was evidence that raised
doubts regarding the individual’s eligibility for a security clearance under Criteria H and L of the
Part 710 regulations. I also find that the individual has not presented sufficient information to
fully resolve those concerns. Therefore, I cannot conclude that restoring the individual’s
suspended DOE access authorization “will not endanger the common defense and security and is
clearly consistent with the national interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the
DOE should not restore the individual’s suspended DOE access authorization.
The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
William M. Schwartz
Hearing Officer
Office of Hearings and Appeals
Date: February 4, 2014