TSO-1007

* 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.
July 1, 2011
DECISION AND ORDER
OFFICE OF HEARINGS AND APPEALS
Hearing Officer=s Decision
Name of Case: Personnel Security Hearing
Date of Filing: February 15, 2011
Case Number: TSO-1007
This Decision concerns the continued eligibility of XXXXXXXXXXXXXX (hereinafter
referred to as “the individual@) to hold an access authorization under the regulations set
forth at 10 C.F.R. Part 710, entitled ACriteria and Procedures for Determining Eligibility for
Access to Classified Matter or Special Nuclear Material.@ As set forth below, it is my
decision, based on the evidence and testimony presented in this proceeding, that the
individual=s access authorization should not be restored.
I. Background
The individual is employed by a Department of Energy (DOE) contractor and has held a
security clearance at the request of her employer since 1991. In November 2009, the
individual was apprehended after shoplifting at a local store and the local police department
gave her a citation for shoplifting. She reported the incident to the local security office
(LSO) and the LSO conducted a personnel security interview (PSI) with the individual in
December 2009. The individual stated that she did not intentionally steal any items and
that she would not repeat her actions. The LSO concluded that the security concern was
mitigated because the incident occurred under unusual circumstances. However, in
September 2010, the local police department again cited the individual for shoplifting. She
reported the incident to the LSO and the LSO conducted a PSI with the individual in
October 2010. The individual explained that her actions were a result of depression and
anxiety. The PSI did not resolve the security concerns and the individual agreed to be
evaluated by a DOE consultant-psychiatrist.
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In November 2010, a DOE consultant-psychiatrist (DOE psychiatrist) interviewed the
individual and concluded that the individual met the criteria for Major Depression, Recurrent
and Kleptomania, as set forth in the Diagnostic and Statistical Manual of Mental Disorders,
4th Edition, Text Revised (DSM-IV-TR), and that she suffered from an illness or mental
condition which causes or may cause a significant defect in her judgment or reliability. The
LSO suspended her access authorization and then informed the individual how to proceed
to resolve the derogatory information that had created a doubt regarding her eligibility for
access authorization. Notification Letter (December 2010). The Notification Letter stated
that the derogatory information regarding the individual falls within the purview of 10 C.F.R.
§ 710.8 (h) and (l) (Criteria H and L). 1 As for Criterion H, the Notification Letter referred
specifically to: (1) the diagnoses of the DOE psychiatrist; (2) the individual’s admission that
the September 2010 citation was likely a result of her feelings of depression; and (3) her
citation for shoplifting in November 2009. As regards Criterion L, DOE noted that the two
citations were a result of criminal conduct. The Notification Letter also based this security
concern on the individual’s second citation for shoplifting that occurred only one year after
she told the LSO that she would not engage in criminal activities in the future. According to
the LSO, this tends to show that she is not reliable or trustworthy.
In a letter to DOE Personnel Security, the individual exercised her right under Part 710 to
request a hearing in this matter. 10 C.F.R. § 710.21(b). The Director of OHA appointed me
as Hearing Officer in this case. After conferring with the individual and the appointed DOE
counsel, 10 C.F.R. § 710.24, I set a hearing date. At the hearing the individual, who was
represented by counsel, testified on her own behalf and also called five witnesses. DOE
counsel called the DOE psychiatrist as a witness. The transcript taken at the hearing shall
be hereinafter cited as ATr.@ Various documents that were submitted by the parties during
this proceeding constitute exhibits to the hearing transcript and shall be cited as AEx.@ DOE
exhibits are numbered, and the individual’s exhibits are lettered.
II. Analysis
The applicable regulations state that A[t]he decision as to access authorization is a
comprehensive, common-sense judgment, made after consideration of all relevant
information, favorable or unfavorable, as to whether the granting of access authorization
would not endanger the common defense and security and would be clearly consistent with
the national interest.@ 10 C.F.R. ' 710.7(a). Although it is impossible to predict with
absolute certainty an individual=s future behavior, as the Hearing Officer I am directed to
make a predictive assessment. There is a strong presumption against the granting or
restoring of a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531
(1988) (Aclearly consistent with the national interest@ standard for the granting of security
1 Criterion H concerns information in the possession of the agency that the individual 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). DOE invokes Criterion L when it is
in possession of information that indicates that the individual has engaged in unusual conduct or is subject to
circumstances which tend to show that she is not honest, reliable, or trustworthy or which furnish reason to
believe that she may be subject to pressure, coercion, exploitation, or duress which may cause her to act
contrary to the best interests of the national security. 10 C.F.R. § 710.8 (l).
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clearances indicates Athat security determinations should err, if they must, on the side of
denials@); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S.
905 (1991) (strong presumption against the issuance of a security clearance).
I have thoroughly considered the record of this proceeding, including the submissions of the
parties, the evidence presented and the testimony of the witnesses at the hearing
convened in this matter. In resolving the question of the individual=s eligibility for access
authorization, I have been guided by the applicable factors prescribed in 10 C.F.R.
§ 710.7(c): 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 the 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 continuance or recurrence; and
other relevant and material factors. After due deliberation, I find that the individual=s access
authorization should not be restored because I cannot conclude that such a restoration
would not endanger the common defense and security and would be clearly consistent with
the national interest. 10 C.F.R. § 710.27(a). The specific findings that I make in support of
this determination are discussed below.
A. Findings of Fact
In 1991, the individual, a college student working summers for a DOE contractor, was
granted a clearance as a condition of her employment. Ex. 6 at 2. That year, she had a
depressive episode as a result of a death in her family and took a semester off from her
studies, but she did not seek counseling or take any antidepressants. Ex. 8 (Report) at 2.
In 1997, she experienced her second depressive episode after the death of another
relative, and her manager referred her to the Employee Assistance Program (EAP) after
she used all of her sick leave for depression-related absences. In 1999, she married.
Report at 7. She had a third depressive episode after the birth of her first child in 2000, and
suffered from postpartum depression. She did not use an antidepressant because she was
breastfeeding. She experienced her fourth significant depressive episode beginning in
January 2009 after the birth of her third child. This unexpected pregnancy caused great
changes in her busy life as a working mother. She suffered from insomnia, reduced
memory, tearfulness, irritability, and a lack of energy. She withdrew from friends and family
and suffered from low self-esteem. Her family noticed that she always looked sad. Her
managers recommended mental health treatment because she cried often. Report at 4.
On November 8, 2009, the individual went to a local store with her three children, the
youngest riding in a stroller. As she selected items in the store, she placed them on top of
the stroller. She put a flash drive on top of the stroller also, but when it began sliding down
into the stroller, she put it in her purse. She paid for the items on top of the stroller at the
checkout, but the USB drive set off the alarm when she left the store. When a clerk
stopped her, she panicked, pulled the drive from her purse, and threw it on a table of
clearance items. Report at 4. A cashier saw this and called the manager, who accused
her of trying to steal the item. The police gave her a citation for Shoplifting and
Abandonment or Cruelty to Children. She had to sign an order stating that she would never
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enter that store again. In December 2009, the individual discussed the incident with the
LSO at a PSI, but no further action was taken because the concerns were mitigated. She
stated in the PSI that she was not guilty of shoplifting and did not do anything wrong. Ex. 20
(PSI 2009) at 36, 45. The individual went to court in January 2010, and the charges were
dismissed. Report at 4; Tr. at 155.
The individual had been experiencing difficulties at work due to her inability to travel
frequently, which resulted in assignments she considered less desirable. Id. at 43. She
was often tearful at work and frequently sought counsel and support from her second level
manager. However, she had recently heard that this manager would soon be transferred,
and she was upset about the impending move. Ex. 19 at 42-44.
On September 23, 2010, the individual stopped at a store to buy a few items including gifts
for her mother’s birthday. Ex. 9-12. She was waiting for a call from her office to tell her
whether or not she was required to report to work that morning. The individual selected
some eye drops from the shelf for her mother, along with a few items of clothing and some
Band-Aids. According to the individual, her mother preferred a certain type of eye drop
bottle that released larger drops. She removed the eye drops from their boxes and put the
bottles in her purse, but left the packaging in her cart under the clothing items. Ex. 19 at
18. She also put the Band-Aid box in her purse. While still shopping she was notified that
she should immediately report to work, and she went to the checkout counter. The cashier
told her that the machine did not accept debit cards at that time, and when the cashier
swiped the individual’s credit card, that was not accepted either. She asked the cashier to
let her retrieve her ATM card from her car so that she could pay with cash. Ex. 19 at 8, 16.
When she exited the store, the alarm went off, and a guard asked her to go to his office.
The guard asked her to empty her purse, and discovered the eye drops and Band-Aids in
her purse. The purse contained six bottles of eye drops, two large and four small, and
various other items. She told the guard that she did not intend to steal the items, and as
proof stated that the denture adhesive was still in its packaging in the cart. Ex. 19 at 9. She
asked to pay and to speak to the manager. Ex. 19 at 7-12. She told the manager that she
had forgotten that the items were in her purse because she was in a hurry to get to work
and planned to return to the store with her ATM card. She also told the manager that she
was not hiding the items because the purse was open. Despite her pleas to pay for the
items, the manager called the police and a policeman gave her a citation. Tr. at 16; Ex. 9-
12.
The individual informed DOE of the citation and in October 2010, the LSO conducted a PSI.
She told the LSO that she planned to plead not guilty because she did not have any intent
to steal and wanted to pay for the items. Ex. 19 (2010 PSI) at 23, 30. She also revealed
how she was easily distracted (e.g., she drove past her children’s school and did not
remember to stop and pick them up, she went to a room to retrieve an object but forgot
what she wanted when she arrived). Id. at 36. The individual described feeling isolated,
sad, irritable, and stressed out. Id. at 39-40. Even though her infant was no longer
breastfeeding, her sleep had not improved. Id. at 39-40, 54. She had not told her mother
and sisters about the citations. Id. at 50-52. She agreed to a psychiatric evaluation and in
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November 2010, a DOE psychiatrist conducted an evaluation and diagnosed the individual
with Major Depression, Recurrent and Kleptomania.2 Report at 10.
B. The Notification Letter and the Security Concerns at Issue
To support Criterion H, the LSO relies on the DOE psychiatrist’s report that the individual
suffered from Major Depression, Recurrent and Kleptomania. Report at 10. The DOE
psychiatrist further opined that these conditions cause or may cause a significant defect in
her judgment or reliability. The LSO also relied on information that the individual was cited
for Shoplifting under $100 in September 2010, and for Shoplifting under $250 and
Abandonment or Cruelty to Children in November 2009. Exs. 9-17. A mental condition
such as depression or Kleptomania can impair a person’s judgment, reliability and
trustworthiness, all of which can raise questions about an individual’s ability to protect
classified information See Guideline I, Psychological Conditions, Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information, Assistant to the
President for National Security Affairs (December 29, 2005) (Guidelines) ¶ 28(a)-(b).
To support the allegations under Criterion L, the LSO relies on the following information: (1)
the individual displayed criminal conduct when she was cited for shoplifting in September
2010 and November 2009; and (2) the individual’s conduct tends to show that she is not
reliable or trustworthy because she indicated in a December 2009 PSI that she would not
be involved in any future criminal activity, but she was cited a second time for shoplifting in
September 2010. These events create doubt about her judgment, reliability, and
trustworthiness. The criminal activity also calls into question her ability or willingness to
comply with laws, rules and regulations. See Guideline J, Criminal Conduct, ¶ 30. Thus,
the LSO’s concern is valid and I find that the LSO properly invoked this criterion.
C. Hearing Testimony
1. Character Witnesses
The individual’s husband, two friends and second level manager testified that the individual
was an honest hard-working person. Tr. at 23-108. They were all aware of her citations for
shoplifting, and consider those actions out of character for the individual. They all
described the high levels of stress in her life as a result of her demanding job, conflicts with
colleagues, chronic pain from injured knees, and sleep deprivation from caring for an infant.
They agreed that the individual was often distracted by the demands of her family and her
career. However, all of the witnesses were familiar with the individual’s treatment regimen
2 The DSM-IV-TR lists five diagnostic criteria for Kleptomania: (A) recurrent failure to resist impulses to steal objects
that are not needed for personal use or for their monetary value; (B) increasing sense of tension immediately before
committing the theft; (C) pleasure, gratification, or relief at the time of committing the theft; (D) the stealing is not
committed to express anger or vengeance and is not in response to a delusion or a hallucination; and (E) the stealing is
not better accounted for by Conduct Disorder, a Manic Episode, or Antisocial Personality Disorder. DSM-IV-TR at 667-
669.
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and remarked that the individual in recent months has seemed happier and less distracted.
2. The Individual’s Expert Witness
The individual called as an expert witness a psychologist who conducted six hours of
structured and unstructured interviews with the individual and also administered a battery of
psychological tests: the Minnesota Multiphasic Personality Inventory (MMPI), Rorschach,
Sentence Completion, and Human Figure Drawing Tests. Tr. at 160-168. The witness
read the report of the DOE psychiatrist, and agreed with the diagnosis of Major Depression,
Recurrent, but disagreed with the diagnosis of Kleptomania. Id. at 164-170. The
psychologist concluded that depression was a factor in the individual’s behavior. However,
he disagreed with the diagnosis of Kleptomania for the following reasons: (1) the individual
had a low score on psychopathic deviance; (2) she did not display any obsessive
tendencies; (3) she had low scores in impulsivity; (4) she did not steal anything of value; (5)
she did not experience any tension build up prior to the theft; and (6) her thefts appeared
spontaneous and not planned like most committed by those who suffer from Kleptomania.
Tr. at 164-171. He opined that the situational factors that accompanied her depression--the
physical strain of breastfeeding, sleep deprivation, and chronic knee pain--all combined to
cause her depression and lower her attention span, concentration, and capacity to integrate
information. Id. at 169-170.
He noted that in the past the individual was able to ease the depression caused by the
death of a family member with only few therapy sessions. Tr. at 186. See also Ex. 6 at 2.
Her support system has improved over the years because her family is now alert to her
needs. The psychologist concluded that her current treatment program is effective, and her
depression is in remission with a low probability of recurrence. Tr. at 178.
3. The Individual
The individual admitted that she was cited for shoplifting on two occasions, but testified that
she does not believe that she had a problem with stealing. Tr. at 139-140. She explained
that she should not have gone into the store in the 2010 incident because of all of the
pressures on her that day. Instead, she described her actions as careless, and maintained
that she did not have any intent to steal. Id. at 141-144. During that period in her life, she
was not able to admit to herself that she was depressed, but rather believed that she could
get better on her own without the help of any professional or medication. Id. at 158.
However, she began taking an antidepressant in January 2011, meets her therapist twice a
month and sees the EAP counselor once a month to update him on her progress with the
therapist. Id. at 154. Her life now is much improved—she previously had been waking up
three to four times a night, but now sleeps through the night and is not sluggish during the
day. Id. at 125. She testified that medication has “made a world of difference,” and that
she considers her therapist “a godsend.” Id. at 125.3 She feels happy, has reconnected
3 The individual’s therapist submitted a letter into evidence. Ex. A. The therapist stated that she does not believe that the
individual has Kleptomania, and she finds the individual to be an honest person. She agrees with the diagnosis of Major
Depression, Recurrent, and has focused her sessions on that area. She has observed “a marked improvement in [the
individual’s] affect and function.” Id. They began sessions in November 2010 and have met 13 times for therapy. Since
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with friends, and is no longer breastfeeding. Id. at 126. After the surgery she can now play
sports with her children and exercise regularly. The criminal charges in both cases were
dismissed. Id. at 131-132, 155. She intends to continue with antidepressants, therapy, and
exercise. Id. at 130.
4. DOE Psychiatrist
The DOE psychiatrist was present during the entire hearing and testified at the end after
observing all of the witnesses. Tr. at 188-237. At the time of his evaluation in November
2010, he diagnosed the individual with Major Depression, Recurrent and Kleptomania.
However, at the hearing, he agreed with the individual’s expert and her therapist that the
individual's depression was in remission after a successful treatment regimen of anti-
depressants, exercise, and therapy. Id. at 213.
The DOE psychiatrist further opined at the hearing that the individual still suffered from
Kleptomania. Id. He considered the two shoplifting incidents to be typical of Kleptomania
episodes and questionable as “honest mistakes” as described by the individual. He
believes that she had the intent to take the items and not pay for them. Id. at 216. Even
though he considered her to be more honest than the average person, he believes that she
still suffers from Kleptomania. Id. at 220-221. First, Kleptomania is impulsive, not planned
like a common theft, and her actions appeared impulsive. Id. at 198. He testified that her
actions in both incidents could not be considered an honest mistake –it is possible that she
removed the items from the boxes thinking that the sensor was in the packaging. Id. at
199. The psychiatrist found it odd that a person with a security clearance who had a
previous shoplifting citation would put an item in her purse. Id. He testified that such an
action would make the average person uncomfortable, and a clearance holder should feel
even more discomfort. Second, she took things that she didn’t plan to take and did not
need, a key criterion for Kleptomania in the DSM-IV-TR. She said that her mother did not
like the small bottles of eye drops, but she had small bottles in her purse when the guard
searched her. Id. at 201.
The psychiatrist found no evidence of tension before or pleasure after the theft (i.e.
additional diagnostic criteria for Kleptomania), but he still made a diagnosis of Kleptomania.
Because the individual did not admit any problem, he concluded that it would be unlikely
that she would have admitted the tension or relief elements of a Kleptomania episode. Id. at
202-203. Nonetheless, he concluded that she still suffered from Kleptomania and her
prognosis was guarded because she did not admit that she had actually stolen anything.
Id. at 207. According to the psychiatrist, the individual would have to admit a problem in
order to resolve the problem and then follow a recommended treatment plan to show
rehabilitation. Id. at 225-230.
January they have met every two weeks, and will re-evaluate that schedule in six months. Id. She believes the
antidepressant has worked well for the individual. Id.
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D. Mitigation of Security Concerns
After a review of the record, I conclude, for the following reasons, that the individual has not
fully mitigated the security concerns related to Criteria H and L.
1. Criterion H
I find that the individual has mitigated the security concerns relating to her depression. At
the time of the hearing, the DOE psychiatrist, the individual’s therapist, and her expert
witness all agreed that her depression was in remission after a successful treatment
regimen. The individual provided testimony and evidence that has demonstrated ongoing
and consistent compliance with the treatment plan designed by her therapist. Guideline I, ¶
29 (a). She is currently receiving counseling and has a favorable prognosis by her
therapist. Further, the DOE psychiatrist has opined that her depression is in remission and
has a low probability of recurrence, and there is no indication of a current problem. Id. at
¶29 (c), Therefore, I conclude that the individual has mitigated the Criterion H concerns
regarding the diagnosis of depression.
However, I cannot find that the individual has mitigated the security concern regarding the
diagnosis of Kleptomania. First, although the individual’s expert testified at length that the
individual does not have Kleptomania, I am more persuaded by the testimony of the DOE
psychiatrist that the individual suffers from that disorder. Tr. at 166. The psychiatrist more
credibly used the DSM-IV-TR criteria to justify his diagnosis. For example, the individual’s
expert stated that the absence of social deviance (i.e., the individual was not a common
thief) proved that the individual was not suffering from Kleptomania. However, the DOE
psychiatrist explained that the absence of any deviance is a characteristic of Kleptomania
because that diagnosis excludes any deviance or antisocial disorder. Id. at 196. To
diagnose Kleptomania, you must rule out antisocial personal disorder and deviance, and
the psychologist’s test did so. Also, the DOE psychiatrist emphasized that the individual
stole things that she did not want, as stated in the Diagnostic Criteria for Kleptomania. Id.
at 200-201; DSM-IV-TR at 669. See Personnel Security Hearing, Case No. TSO-0965
(2011) (key diagnostic criteria for Kleptomania is the recurrent theft of things that the
individual does not need and had no reason to take).4 Even though the individual said that
her mother preferred the larger bottles of eye drops, she was apprehended with four of the
smaller bottles in her purse, along with the large ones. Tr. at 141-144.
Second, I agree with the DOE psychiatrist that the individual does not have a good
prognosis without admitting that she suffers from Kleptomania. Although I find the
individual to be a credible and sincere person, this disorder presents a security concern
because a person who suffers from Kleptomania and has access to sensitive material may
steal it. See Personnel Security Hearing, Case No. TSO-0956 (2010) (explaining the
security concern related to Kleptomania). I agree with the DOE psychiatrist that if the
individual cannot recognize a problem, she cannot resolve it. Tr. at 202-203; 207. She
continued to say that her actions were not stealing. See, e.g. Ex. 19 at 12 (she told a
4 Decisions issued by the Office of Hearings and Appeals (OHA) are available on the OHA website located at
http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case number of the decision in the
search engine located at http://www.oha.doe.gov/search.htm.
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policeman that she was not stealing because an unopened item was still in her cart, not in
her purse.). The DOE psychiatrist also testified that she should have been more aware, as
a clearance holder, of her actions in putting items in her purse or on a stroller while
shopping. Therefore, I agree with the DOE psychiatrist that her Kleptomania is
unacknowledged and untreated, and I am persuaded by the testimony of the DOE
psychiatrist that there is an unacceptable likelihood of recurrence of her Kleptomania. Tr.
at 213. Thus, I cannot find that the security concern related to the diagnosis of
Kleptomania has been resolved.
2. Criterion L
I also find that the individual has not resolved the Criterion L concern at this time. To
resolve a Criterion L concern arising from illegal conduct, an individual must show
rehabilitation, including a passage of time without recurrence of the criminal activity. See
Personnel Security Hearing, Case No. TSO-0956 (2010). The individual had two citations
for shoplifting in the last two years, and it has been less than a year from the last shoplifting
incident to the date of the hearing. See Personnel Security Hearing, Case No. TSO-0956
(2010); (Criterion L concern not resolved when most recent shoplifting arrest was within the
past year); Guideline J, Criminal Conduct, ¶ 32(d). Further, the individual has not
acknowledged the behavior that caused the security concern and does not admit that she
did anything wrong. See Guideline E, ¶ 17 (d) (conduct involving questionable judgment
may be mitigated if the individual acknowledges the behavior and then takes positive steps
or obtains counseling to change that behavior). Therefore, I conclude that she has not
mitigated the security concerns regarding Criterion L.
III. Conclusion
As explained in this Decision, I find that the LSO properly invoked 10 C.F.R. § 710.8 (h) and
(l). After carefully reviewing the testimonial and documentary evidence in a common-sense
manner, I find that the individual has partially mitigated the Criterion H concern, but has not
presented any mitigating factors for the Criterion L concern. Thus, in view of the criteria
and the record before me, I cannot find that restoring the individual=s access authorization
would not endanger the common defense and security and would be consistent with the
national interest. Accordingly, I find that the individual’s access authorization should not be
restored at this time. Any party may seek review of this Decision by an Appeal Panel under
the procedures set forth at 10 C.F.R. § 710.28.
Valerie Vance Adeyeye
Hearing Officer
Office of Hearings and Appeals
Date: July 1, 2011
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