PSH-22-0128

*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 11, 2022 ) Case No.: PSH-22-0128
)
__________________________________________)
Issued: October 20, 2022
___________________________
Administrative Judge Decision
___________________________
Noorassa A. Rahimzadeh, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual’s access
authorization should not be granted.
I. Background
A DOE Contractor employs the Individual in a position that requires him to hold an access
authorization. As part of the clearance process, the Individual was required to complete a
Questionnaire for National Security Positions (QNSP), which he signed and submitted on October
1, 2021. Exhibit (Ex.) 4. Among other things, the Individual was asked about his past employment,
the conditions for his departure, and whether he was ever reprimanded or disciplined for
misconduct in the workplace. Ex. 4. The Office of Personnel Management (OPM) subsequently
conducted an enhanced subject interview (ESI) of the Individual on October 19, 2021. Ex. 4.
During the ESI, the Individual disclosed further information to the OPM investigator regarding the
particulars of his termination from past employment that he had not previously provided on his
QNSP. Ex. 4. Based on the information provided, the Local Security Office (LSO) desired further
clarification and requested that the Individual complete a Letter of Interrogatory (LOI), which the
Individual submitted on February 25, 2022. Ex. 5.
Due to unresolved security concerns, the LSO began the present administrative review proceeding
by issuing a letter (Notification Letter) to the Individual in which it notified him that it possessed
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
2
reliable information that created substantial doubt regarding his eligibility to hold a security
clearance and that his clearance had been suspended. In a Summary of Security Concerns (SSC)
attached to the letter, the LSO explained that the derogatory information raised security concerns
under Guideline E (Personal Conduct) of the Adjudicative Guidelines. Ex. 1. The Notification
Letter informed the Individual that he was entitled to a hearing before an Administrative Judge to
resolve the substantial doubt regarding his eligibility to hold a security clearance. See 10 C.F.R. §
710.21.
The Individual requested a hearing, and the LSO forwarded the Individual’s request to the Office
of Hearings and Appeals (OHA). The Director of OHA appointed me as Administrative Judge in
this matter. At the hearing I convened pursuant to 10 C.F.R. § 710.25(d), (e), and (g), the Individual
testified on his own behalf. See Transcript of Hearing, Case No. PSH-22-0128 (hereinafter cited
as “Tr.”). He also submitted eleven exhibits, marked as Exhibits A through K. The DOE Counsel
submitted five exhibits marked as Exhibits 1 through 5 and did not call any witnesses.
II. Notification Letter and Associated Concerns
As indicated above, the Notification Letter informed the Individual that information in the
possession of the DOE created substantial doubt concerning his eligibility for a security clearance.
That information pertains to Guidelines E of the Adjudicative Guidelines. Ex. 1.
Under Guideline E, “[c]onduct involving questionable judgement, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness, and ability to protect classified or sensitive information.” Adjudicative
Guidelines at ¶ 15. Among those conditions set forth in the Adjudicative Guidelines that could
raise a disqualifying security concern is a “refusal, or failure without reasonable cause, to undergo
or cooperate with security processing, including but not limited to… completing security forms or
releases[,]” and “[r]efusal to provide full, frank, and truthful answers to lawful questions of
investigators, security officials, or other official representatives in connection with a personnel
security or trustworthiness determination.” Adjudicative Guidelines at ¶ 15(a) and (b).
With respect to Guideline E, the LSO alleged that “the Individual had demonstrated a pattern of
questionable judgement, untrustworthiness, lack of candor, and an unwillingness to comply with
rules and regulations” by stating that: 1) during the ESI, it was revealed that the Individual was
terminated from the employ of the fifth employer listed on the QNSP (Employer 5),2 a law
enforcement entity, when he denied an inmate his request to be moved to a different cell, which
resulted in the inmate being assaulted by his cellmate, regarding which the Individual told the
OPM investigator “that he was not aware that his conduct was an issue[;]” 2) the Individual is
ineligible for rehire by Employer 5, as a 2019 Internal Affairs (IA) investigation revealed that the
Individual violated Code of Conduct General Order 121.01 and a source revealed to the OPM
investigator that the Individual did not complete appropriate prison movements and paperwork
despite performance reviews that indicate he was counseled for this behavior; 3) the OPM
investigator was informed by a source with Employer 5 that the Individual’s “ability to make good
2 Employers were listed in reverse chronological order on the QNSP. The employers that appear in this decision have
not been renumbered and reflect the original number assigned to them in the QNSP. Only the employers referred to
in the SSC have been discussed in this decision.
3
decisions required improvement[,]” that the Individual “lacked interpersonal skills,” that he
experienced “personality conflicts” with his colleagues, and that “honesty” and “lack of trust” may
have caused the conflict with his colleagues; 4) a former supervisor with Employer 5 did not
recommend the individual for a national security position because he questioned the Individual’s
judgement and reliability, felt that the Individual was immature, did not have the ability to “handle
sensitive, classified, or restricted information,” and alleged that he did not always complete
necessary security checks and received counseling for violating security protocol; 5) while with
Employer 5, the Individual opened a window, in knowing violation of security protocol, to take a
delivery, which caused potential access to sensitive controls and information; 6) while in the
employ of Employer 5, the Individual took a previously issued firearm in a secure area that was
occupied by inmates in violation of protocol that required the Individual to unload and surrender
the firearm before entering the area; 7) the Individual was previously counseled by supervisors
with Employer 5 for the lack of tact he exhibited toward inmates, causing the inmates to become
violent, and the Individual “would rotate to other squads to stay ahead of the issues he had caused
with his previous squads”; 8) the Individual indicated that he was terminated by the sixth employer
listed in the QNSP (Employer 6) because “he had made a comment that was not liked[,]” but during
the ESI, the Individual disclosed that he made a statement to calm himself down while leaving a
coaching session during which he was told that he was “placed on a final warning[,]” and that he
was told by Human Resources that the statement was “offensive, threatening, and inappropriate
which resulted in his termination” and the Individual “is not eligible for rehire”; 9) the Individual
reported that he was terminated by the seventh employer listed in the QNSP (Employer 7) “due to
a policy infraction,” and he revealed during the ESI that he had altered “an instant message
greeting” to cheer up his supervisor, that he was later notified that this was a violation of policy,
and a week later, he was terminated for a policy infraction and stated in his LOI that “he tried to
apologize” and “[did not] know it was an issue[;]” 10) a source with Employer 7 told the OPM
investigator that the Individual had been “written up several times for misconduct[,]” that he had
received counseling for engaging in “customer abuse,” that the Individual was “combative with
authority” that he was disrespectful to a woman conducting employment training, and indicated
that the Individual “is a ‘huge’ security risk[;]” 11) a source with Employer 7 told the OPM
investigator that the Individual “created an unauthorized ‘chat’ with other coworkers” to teach his
coworkers “how to manipulate stats/metrics” so that they appear more efficient, and accordingly,
she did not recommend the Individual “for a position of trust[;]” 12) the Individual “admitted [in
his LOI] to using ‘free time’ at work every day to study for a…test,” which upset his managers,
who discussed this matter with him; 13) the Individual disclosed that he was terminated by the
eighth employer listed in his QNSP (Employer 8) after his Family Medical Leave Act (FMLA)
request had not been approved, and he stated during the ESI that he took six days of unpaid leave
under FMLA because of a family emergency, and further, the Individual was ineligible for FMLA,
resulting in his termination “for taking unapproved leave[;]” 14) the Individual provided “false or
misleading information” on his QNSP when he failed to state “that he had received a written
warning, been officially reprimanded, suspended, or disciplined in the workplace” with regard to
his employment with Employers 5, 6, and 7, and when he incorrectly stated his dates of
employment with the third and tenth employers listed in the QNSP (Employers 3 and 10). Ex. 2 at
4-8. The foregoing justifies the LSO’s invocation of Guideline E.
III. Regulatory Standards
4
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the granting
or continuation of a person’s 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 regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Department of Navy v. Egan, 484 U.S. 518, 531 (1988) (“clearly consistent with the national
interest” standard for granting security clearances indicates “that security determinations should
err, if they must, on the side of denials”); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990)
(strong presumption against the issuance of a security clearance).
The individual must come forward at the hearing with evidence to convince the DOE that granting
or restoring access authorization “will not endanger the common defense and security and will be
clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The individual is afforded a
full opportunity to present evidence supporting his eligibility for an access authorization. The Part
710 regulations are drafted so as to permit the introduction of a very broad range of evidence at
personnel security hearings. Even appropriate hearsay evidence may be admitted. 10 C.F.R.
§ 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence to
mitigate the security concerns at issue.
IV. Findings of Fact and Hearing Testimony
In the QNSP, the Individual indicated that he had been terminated by Employer 5 when an
“[i]nmate was injured during [his] supervision.” Ex. 4 at 31; Tr. at 19. He reiterated this
explanation in the written statement he submitted in response to the allegations in the SSC (written
statement), his LOI, and in his testimony. Ex 1 at 6; Ex. 4 at 67; Tr. at 94. Although he disclosed
his termination by Employer 5, the Individual did not indicate in his QNSP that he had “received
a written warning, been officially reprimanded, suspended or disciplined for misconduct in the
workplace[.]” Ex. 4 at 31. Further investigation conducted by OPM investigators revealed that the
Individual was not eligible for rehire with Employer 5 and that this employer had conducted an IA
investigation and terminated the Individual for “violating Code of Conduct General Order 121.01.”
Ex. 4 at 85, 117. According to a source that was interviewed an OPM investigator, the Individual
had repeatedly failed “to complete prison movements” and necessary paperwork while in the
employ of Employer 5. Ex. 4 at 117; Tr. at 95-96. In his written statement and at the hearing, the
Individual denied the assertion that he was reprimanded for violating multiple rules and
regulations, stating that “[he] was not requested to or required to complete any counseling for
policy violations.” Ex. 1 at 7; Tr. at 19. He testified that he “never received any type of counseling
for [failure to complete prisoner movement].” Tr. at 30. During the October 2021 ESI and in his
written statement, the Individual stated that he was not aware that his failure to move the inmate,
which resulted in the inmate’s harm, “was an issue.” Ex. 4 at 67; Ex. 1 at 6. The Individual
indicated in his written statement, in the LOI, and during his hearing that he had denied the
inmate’s repeated requests to change detention cells pursuant to applicable procedure and the
information and instruction he had received from colleagues who outranked him. Ex. 1 at 6; Ex. 5
at 2-3; Tr. at 21-25, 177-78. The Individual learned that the inmate had been injured upon hearing
“a thud” that sounded as though the inmate “just got hit.” Tr. at 25-26. The Individual stated that
the inmate was not harmed and that he was “a little out of it.” Tr. at 26. He testified that he was
5
subsequently “chewed out” by a difficult supervisor, and that the incident resulted in an internal
investigation that indicated the Individual “did not do [his] due diligence[.]” Tr. at 26-28, 95. The
Individual testified that although his captain did not want to terminate him, there was some fear
“of legal liability at that time.” Tr. at 27, 101-02. In his testimony, he indicated this was the first
and only time he had been “in trouble” for his failure to move an inmate.3 Tr. at 95. At the hearing,
the Individual denied having deliberately concealed or falsified information regarding this
incident, stated he could not explain why the internal investigation revealed that he had been
counseled for his failure to move prisoners, and stated he only recently became privy to the results
of the investigation. Tr. at 29, 96-98.
“[A] top level manager” with Employer 5 told the OPM investigator that he had “reservations”
about the Individual, and that although the Individual “had good intentions and wanted to be
helpful on the job[,]” he “lacked maturity.”4 Ex. 4 at 82. This supervisor also reported that although
he could not “recall the reason for the [Individual’s] termination[,]” he believed “it was related to
the lack of trust by coworkers.” Ex. 4 at 83. During that interview, the manager suggested that
“honesty may have been a reason for the lack of trust,” and that the Individual had deficient
interpersonal skills. Ex. 4 at 83. Regarding this matter, the Individual admitted that there were
“personality conflicts” with his colleagues but that it did not interfere with the performance of his
duties. Ex. 1 at 7. The Individual testified that the personality conflicts stemmed from the fact that
his colleagues wanted him to treat inmates poorly, which presented him with a “moral dilemma.”
Tr. at 35.
A former supervisor with Employer 5 told an OPM investigator that the Individual failed to comply
with security protocol, for which he was counseled multiple times.5 Ex. 4 at 84. The former
supervisor further stated that on one occasion, the Individual opened a window that he knew should
have remained closed to take a delivery, allowing “public access into a restricted area.” Ex. 4 at
84. The source further stated that the Individual “did not always do the required security checks.”
Ex. 4 at 84. Regarding the delivery incident, the Individual stated that he “made a mistake[]” taking
the delivery in that manner, and that he simply “forgot about the …incident[,] as that was the only
time [he had been] reprimanded.”6 Ex. 1 at 7, 10; Tr. at 30, 71, 109-10. Regarding the reprimand,
the Individual’s testimony confirmed that he had accepted a delivery through a lobby window from
3 After providing his explanation of what transpired while he was employed with Employer 5, the Individual was
asked by his counsel whether he “ha[d] a lot of space to provide additional information and documentation on the
actual QNSP[.]” Tr. at 28. The Individual stated that he did not, thus necessitating the explanations he provided in the
LOI. Tr. at 28-29.
4 The Individual testified that he feels this particular supervisor had reservations because the supervisor’s recall was
likely deficient, and as a result, the statements were unrelated to his character. Tr. at 102-04. He feels the supervisor’s
recall was deficient because his former supervisor “has to go by what the higher ups say[,]” as he was tasked with
enforcing the decision made at the conclusion of the investigation. Tr. at 103-04, 118.
5 As part of the exhibits submitted, the Individual provided certificates from Employer 5 that indicate he completed
training for such things as defensive tactics and basic training experiences. Ex. C.
6 The Individual was asked whether he would have reported this incident had he remembered it, and he insisted that
he would have. Tr. at 71. He also responded in the affirmative when he was asked whether he had “accurately reported
all other information” on the QNSP. Tr. at 71.
6
a person he and his coworkers would see with some regularity because his coworkers were
indisposed, and the delivery person was anxious to leave. Tr. at 30-32. A coworker who “[was not]
very fond of [the Individual] just because [he did not] play the same game they did[]” told the
Individual he was going to report the Individual.7 Tr. at 32-34. The Individual testified that he
initially protested, stating that he had previously seen his coworkers open the window for
deliveries, but he was subsequently reprimanded by a superior who did not desire to reprimand
him. Tr. at 34-39. The Individual also testified that he was not aware that he was not permitted to
take deliveries in such a manner. Tr. at 109.
The supervisor with Employer 5 also told the OPM investigator that on another occasion, the
Individual took his loaded firearm into a secure area, which was prohibited.8 Ex. 4 at 84. Per the
supervisor, the area was occupied by inmates, and proper protocol requires that the firearm be
secured in another location. Ex. 4 at 122. The Individual stated in his written statement and in his
testimony that this assertion was false, as employees in his position were not issued firearms, and
further, firearms were placed in lockboxes before officers entered secure areas. Ex. 1 at 7; Tr. at
39-42. The Individual testified that this allegation was made with the purpose of “ruin[ing his] job
going forward or any other job that [he] could get[.]” Tr. at 43. The former supervisor told the
OPM investigator that he did not believe the Individual “demonstrated the ability to handle
sensitive, classified[,] or restricted information.” Ex. 4 at 84. He also told the OPM investigator
that the Individual’s behavior toward inmates was marked by a “lack of tact[,]” for which the
Individual had received counseling, as it would result in the inmates behaving violently. Ex. 4 at
122. And further, the former supervisor stated, the Individual would change squads to avoid
receiving punishment. Ex. 4 at 122. The Individual denied ever leaving his squad outside of
working overtime hours, because “there [was] no such thing as rotating shifts,” and indicated that
he was morally opposed to speaking to inmates in an inappropriate manner. Ex. 1 at 8; Tr. at 43-
45, 121-24. In later testimony, the Individual testified that he was initially “direct” and did not
“hesitat[e] to say certain things[]” to the inmates. Tr. at 120. He also stated that he could have been
informally counseled on the matter. Tr. at 120-21.
The Individual disclosed his termination from employment with Employer 6 in his QNSP, stating
that “[a] comment that was made [was not] liked[,]” but denied that he had received a written
warning, official reprimand, suspensive or otherwise disciplined by this employer within the past
7 The Individual testified that he believes that sources with Employer 5 made unfavorable statements to the OPM
investigator because his “moral compass” prevented him from behaving in the manner his coworkers expected, and
accordingly, he was unable to get along with his colleagues. Tr. at 111-15, 117. He indicated that his colleagues knew
he was going to be honest instead of blindly supporting them, and accordingly, they have endeavored to “ruin [him]
going forward[.]” Tr. at 114-15. A former colleague of the Individual who submitted a letter of support stated in his
letter that he understands their former employer, Employer 5, made allegations against the Individual and indicated
that he had “never seen [the Individual] commit any actions that would be a threat to safety or security.” Ex. A. He
went on to state that he left the employer he shared with the Individual due to the “corruption within the ranks” that
he observed. Ex. A.
8 The Individual indicated that this supervisor’s statement regarding the firearm was inaccurate, and accordingly the
rest of his statement could not be trusted. Tr. at 104-06. Further, he believes this supervisor was being directed to
make such statements, and later, he testified that this supervisor was likely “thinking of the wrong individual.” Tr. at
106, 111. The Individual testified that the supervisor likely mistook him for someone else, as “his assumptions [were]
not correct.” Tr. at 91, 93.
7
seven years.9 Ex. 4 at 31-32. In providing further information, the Individual indicated in his LOI
and testimony that he had been coached by supervisors for keeping a customer waiting too long.
Ex. 5 at 3-4; Tr. at 46-50. The Individual testified the customer had been placed on hold because
he could not physically locate her, which was necessary at the time. Tr. at 49-50. He went on to
state that because he apologized to management personnel, provided assurances this behavior
would not happen again, and ultimately guaranteed that “the customer was pleased,” he felt that
the “final warning” he received was “uncalled for.” Ex. 5 at 4; Tr. at 131-32. In his testimony, he
indicated that he had not “had any trouble” prior to this incident. Tr. at 51-52. The Individual
confirmed in his testimony that he was frustrated by the mistreatment he received, and in an effort
to calm himself while exiting the counseling session, the Individual made a statement “under [his]
breath[.]” Ex. 5 at 4; Tr. at 52-53, 127-32. He testified that he made just one comment and that it
was not threatening. Tr. at 53, 127. This statement was heard by an attendee of the counseling
session, and human resources informed the Individual that the attendee felt the Individual’s
“statement was offensive, threatening, and inappropriate.” Ex. 4 at 67; Ex. 5 at 5-6; Tr. at 126-27.
In his written statement and testimony, the Individual denied threatening anyone, stating “one
person reported that they heard me say something, but no one else did.” Ex. 1 at 8; Tr. at 127.
In his QNSP, the Individual disclosed the fact that he had been terminated by Employer 7, and as
the QNSP requests a reason for the termination, the Individual simply stated, “[p]olicy
infraction.”10 Ex. 4 at 32; Tr. at 138. He testified that he did not know the policy his former
employer alleged he violated “in its entirety[,]” so he does not definitively know whether he
violated the policy. Tr. at 139-40. He also stated that “[he] felt [he] was made an example of” in
being terminated. Tr. at 54, 151-53. Regarding his termination from employment with Employer
7, the Individual stated in his LOI and testimony that he believes the fact that he was studying for
an exam during his personal time at work, when he was “permitted…to be away from [his] desk
to do…what [he]…want[ed] to do,” is what set into motion the circumstances for his termination.
Ex. 5 at 6; Tr. at 54, 67-68, 144-45. The Individual testified that he never studied at his desk or in
the presence of customers. Tr. at 68-69. The Individual had told those who asked that he was
studying to secure employment elsewhere, and he stated in his LOI that he believes this angered
management, and as a result, he was “treated differently[.]” Ex. 5 at 6, Tr. at 173-74. The Individual
stated in his testimony that management attempted to make him feel guilty for studying on his free
time. Tr. at 54, 142, 170-71. The Individual testified that he was terminated approximately one
week after he was informally confronted by management regarding the matter. Tr. at 171-72.
The Individual also acknowledged in his LOI, during the ESI, and in his testimony that while
employed with Employer 7, he had altered the sender’s name that appeared on the inside window
of an instant message to reflect his supervisor’s name when he instant messaged her about a matter.
9 The Individual stated in testimony that he denied the allegation that he failed to list the written warning, reprimand,
etc., from Employers 6 and 7 because when he disclosed his termination, he assumed that he was listing the reprimand,
and further, that he provided information regarding the matter during the ESI. Tr. at 72-73. He denied any deliberate
omission, concealment, or falsification. Tr. at 73.
10 The SSC alleges that the Individual reported in his QNSP that he was terminated from employment with Employer
7 “due to a policy infraction.” Ex. 2 at 4. In response to this allegation, the Individual stated in his written statement
that “[d]ue to lack of information, I deny this allegation as written.” Ex. 1 at 8; Tr. at 133-36. The Individual clarified
in his testimony that he was not denying the fact that he was terminated, but that he had not received any reprimand
or counseling prior to his termination. Tr. at 136-37.
8
Ex. 5 at 68; Ex. 5 at 6-8; Tr. at 55-57, 140. The Individual stated that he was notified this was a
violation of the employer’s policy and was terminated approximately one week later. Ex. 4 at 68.
He indicated that altering the sender’s name in an instant message is something that was
commonplace among his coworkers, and he meant it as a gesture “to cheer up [his] supervisor.”
Ex. 1 at 9; Ex. 4 at 68; Ex. 5 at 8; Tr. at 56-57, 139, 145-47. He testified that he initially had a good
relationship with his supervisor, but that it changed over time. Tr. at 141. He feels this was due to
the aforementioned studying. Tr. at 142-43, 148.
A former supervisor with Employer 7 told the OPM investigator that the Individual “is a huge
security risk[,]” and that he was reprimanded on several occasions for various behaviors, including
“customer abuse[]” and “manipulating his stats[.]” Ex. 4 at 114.11 The former supervisor also
indicated that the Individual was “was very combative with authority,” that he did “not like women
in authority,” and that he was disrespectful to the woman who was providing him with employment
training. Ex. 4 at 114. The former supervisor also told the OPM investigator that the Individual
violated policy when he created a chat with coworkers, “show[ing] other employees how to
manipulate stats/metrics that were set in place by the employer.” Ex. 4 at 120. By way of example,
she indicated that the Individual taught other employees to do things like drop customer calls, so
that employees “appear more efficient than they actually were.” Ex. 4 at 120. He denied
manipulating “stats” in his testimony,12 and in his written statement and at the hearing, the
Individual denied having created a chat, as he did not have the “access” to do so. Ex. 1 at 9; Tr. at
58, 63. He also testified that he was “in an unauthorized chat room” with his training group after
the completion of training. Tr. at 63. He stated that the group still had access to the training chat,
so they continued to use the chat until they were told to discontinue the behavior. Tr. at 63-64. He
testified that he feels that this truth was being embellished a bit in the supervisor’s statement to the
investigator, and that he did not discuss “stat” or “metric” manipulation in the unauthorized chat
group. Tr. at 63-64. He testified that the group would discuss their work-related experiences and
ask questions. Tr. at 66. Regarding the assertion that he was combative with the woman who was
training him, the Individual testified that the trainer became “irritated” with him after he asked
multiple questions with the intention of improving the process. Tr. at 60-62, 155-58. He also
testified that he has no issues with women in positions of authority, as he has experience working
with women supervisors. Tr. at 153-55.
11 In his written statement, the Individual only addressed the allegation that he “manipulat[ed] his stats” indicating
that a simple examination of his call stats would prove that he did not engage in such behavior. Ex. 1 at 9. Further, the
Individual stated that he was surprised by this former supervisor’s statements, but that “at the same time, [he] kind of
felt it coming” because he believes this supervisor was instructed to continue perpetuating the falsehoods reported
about him, even after she left employment with Employer 7. Tr. at 147-49, 158-60. He stated that he believes his
former supervisor had “been advised [that] she needs to keep to the story at all costs.” Tr. at 149-51. He indicated that
the information provided by a former supervisor in the employ of Employer 7 “were completely falsified[,]” and that
the grievances against him stemmed from the fact it was discovered that he was studying for another job. Tr. at 91-
93.
12 By way of illustrating this assertion, the Individual testified that he was “maybe top 10[]” in terms of his
performance, as his moral code would compel him to try and work with customers, preventing him from collecting
the full amount owed. Tr. at 58-59. And further, if he was manipulating his “stats,” he would have been closer to the
top. Tr. at 59-60.
9
Regarding his termination from employment with Employer 8, the Individual indicated in his
QNSP that he was terminated by Employer 8 when his “FMLA [did not] get approved in time.”
Ex. 4 at 34-35. The Individual testified that a close family member was ill, so he attempted to
secure leave through FMLA. Tr. at 70, 162. The OPM investigator ascertained during the ESI that
the Individual made the request to take leave pursuant to FMLA prior to taking the leave, that his
leave through FMLA had not been approved, that the Individual was terminated for taking too
many unapproved leave days, but that the request for leave through FMLA was subsequently sent
to the correct office and approved. Ex. 4 at 68. Despite the subsequent approval, the termination
was not reversed. Ex. 4 at 68. The Individual testified that when he attempted to secure FMLA, he
was told that he did not qualify, and at the time, he was not informed of “intermittent FMLA.” Tr.
at 70, 161. At the time he was told he did not qualify, “there was nothing more [he] could do and
the days had already passed.” Tr. at 70, 160-61. The Individual was asked whether he did “what
[he] had to do in terms of…taking time off from work regardless of whether…that would create a
rule violation[.]” Tr. at 162. The Individual confirmed that he did and that he did not feel his
termination was unfair. Tr. at 162-64. However, he disagreed with the ultimate decision not to
rehire him when his leave was ultimately approved. Tr. at 163.
Regarding the incorrectly reported dates of employment, the Individual testified that he marked
that the dates were estimated, and that “[he] wanted to make sure [he] gave the closest date that
[he] could think of.”13 Tr. at 73-75. He also testified that “[he] did not remember that far back, nor
did [he] have any records.” Tr. at 75. Since his termination in 2019 from employment with
Employer 5, the Individual has been employed with a number of other employers and denied any
“work-related” incident since the termination. Tr. at 166-67. He also stated in his testimony that
upon being employed with each employer, he did receive information regarding each one’s
policies. Tr. at 168-70.
V. Analysis
Conditions that could mitigate a security concern under Guideline E include:
a) The individual made prompt, good-faith efforts to correct the omission, concealment, or
falsification before being confronted with the facts;
b) The refusal or failure to cooperate, omission, or concealment was caused or significantly
contributed to by advice of legal counsel or of a person with professional responsibilities
for advising or instructing the individual specifically concerning security processes.
Upon being made aware of the requirement to cooperate or provide the information, the
individual cooperated fully and truthfully;
c) The offense is so minor, or so much time has passed, or the behavior is so infrequent, or
it happened under such unique circumstances that it is unlikely to recur and does not cast
doubt on the individual’s reliability, trustworthiness, or good judgment;
13 In the resume that the Individual submitted, the Individual indicated that he was employed with Employer 3 from
August 2020 to October 2020. Ex. F at 1. In the QNSP, he indicated he was employed with Employer 3 from March
2020 to October 2020. Ex. 4 at 27.
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d) The individual has acknowledged the behavior and obtained counseling to change the
behavior or taken other positive steps to alleviate the stressors, circumstances, or factors
that contributed to untrustworthy, unreliable, or other inappropriate behavior, and such
behavior is unlikely to recur;
e) The individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
f) The information was unsubstantiated or from a source of questionable reliability; and
g) Association with persons involved in criminal activities was unwitting, has ceased, or
occurs under circumstances that do not cast doubt upon the individual’s reliability,
trustworthiness, judgment, or willingness to comply with rules and regulations.
Adjudicative Guidelines at ¶ 17(a)-(g).
As an initial matter, I do not find credible the Individual’s accounts of behavior in his former
employment, to the extent they conflict with the accounts that multiple independent sources
provided to the OPM investigator. The Individual suggested that two separate employers provided
false information regarding his employment history because they had an interest in perpetuating
the falsification about his employment years after the Individual left their employment. But the
Individual did not submit any evidence to corroborate these assertions.14 He initially stated that he
attempted to secure evidence from his former employers to corroborate the explanations he
provided for the alleged acts of misconduct, but he was allegedly informed by those whom he
contacted that he was “not allowed access” or was “told to go somewhere else[.]” Tr. at 86. Later
in his testimony, when he was addressing the alleged matter of the firearm being taken into a secure
location, he responded to DOE Counsel by stating, “with you all’s type of clearances…and
positions…[I am] sure [you] will be able to get this information…where I could not[.]” Tr. at 88.
Regarding the alleged findings of the IA investigation, those which the Individual asserted were
false, the Individual indicated that he “ha[d] no route of getting that type of information” that could
corroborate his version of events. Tr. at 98. When pressed on the matter, he deferred to his attorney.
Tr. at 99-100. The fact remains that while some specific forms of evidence may very well have
been inaccessible to the Individual, the Individual was afforded the opportunity to present different
kinds of evidence to refute the allegations made in the SSC. The Individual was afforded the
opportunity to have witnesses testify, either completely voluntarily or pursuant to a properly issued
subpoena, on his behalf regarding these specific allegations. But he did not. Accordingly, I have
no evidence before me supporting the Individual’s claims that the sources provided false
information. However, I do have at least two sources with the same former employer who made
specific statements that brought the Individual’s character for good judgement and trustworthiness
directly into question and statements from another former employer that did the same. As such, I
14 While the Individual did submit a letter of support from a coworker who advocated for the Individual’s integrity
and good judgement and generally indicated he had witnessed “corruption within the ranks” of Employer 5, he also
stated that “[he] was not there when this alleged incident took place[.]” Ex. A. It is not clear to which incident the
Individual’s former coworker was referring, but at no point in the letter did the former coworker provide a version of
events that contradicted the specific allegations made by the sources interviewed by OPM investigators.
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afford greater weight to the statements of these sources over the self-serving and uncorroborated
testimony of the Individual.
At the hearing and in his written statement, the Individual’s counsel argued that the mitigating
factor at ¶ 17(c) was applicable in this case, as approximately three years had passed since the
Individual was last terminated from employment. I am not persuaded. The Individual repeatedly
exercised the sort of poor judgement and behavior that resulted in his termination with four
different employers over the span of three years. For example, while employed with Employer 5,
not only did the Individual open a lobby window to take a delivery in violation of security protocol,
but his negligent behavior on another occasion resulted in injury to another person. In fact, the
Individual admitted during the hearing that an IA investigation resulted in the finding that he “did
not do [his] due diligence[.]” Tr. at 27-28. Accordingly, I cannot conclude that the events were
“minor, or so much time has passed, or the behavior is so infrequent, or it happened under such
unique circumstances that it is unlikely to recur and does not cast doubt on the individual's
reliability, trustworthiness, or good judgment.” Adjudicative Guidelines at ¶ 17(c).
The Individual’s counsel also argued that the mitigating factor at ¶ 17(e) was applicable in this
case, as the Individual was “open and honest[,]” and therefore not subject to exploitation,
manipulation, or duress. I cannot conclude that the Individual has mitigated the stated concerns
pursuant to this mitigating factor. It is the Individual’s burden to mitigate the concerns as stated in
the SSC. The way the Individual chose to refute the more egregious of the stated allegations was
to assert that two of his employers had falsified information regarding his employment, without
providing any corroborating evidence, and in spite of the fact that multiple sources had described
his behavior as dishonest and lacking in good judgement. Because I cannot conclude that the
Individual has been completely forthcoming with information pertinent to his conduct with
multiple prior employers, I cannot conclude that the Individual has taken positive steps to reduce
or eliminate vulnerability to exploitation, manipulation, or duress.
Lastly, I have no evidence before me to indicate that the Individual attempted to disclose or correct
any omissions, like the allegation that the Individual took a delivery in a manner inconsistent with
security policy while with Employer 5, prior to being confronted with them or that the behavior
was the result of acting pursuant to the advice of counsel or a person who professionally advises
people in such matters. I do not have any proof, beyond the Individual’s general assertions, that
the information came from an unsubstantiated source or one of questionable reliability, and I have
no evidence that the behavior was the result of associating with individuals involved in criminal
activity. Accordingly, the mitigating factors at ¶ 17(a), (b), (f) and (g) are not applicable in this
case.
VI. Conclusion
For the reasons set forth above, I conclude that the LSO properly invoked Guidelines E of the
Adjudicative Guidelines. After considering all the evidence, both favorable and unfavorable, in a
comprehensive, common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I find that the Individual has not brought forth sufficient evidence to
resolve the security concerns set forth in the Notification Letter. Accordingly, the Individual has
not demonstrated that granting his security clearance would not endanger the common defense and
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would be clearly consistent with the national interest. Therefore, I find that the Individual’s access
authorization should not be granted. This Decision may be appealed in accordance with the
procedures set forth at 10 C.F.R. § 710.28.
Noorassa A. Rahimzadeh
Administrative Judge
Office of Hearings and Appeals