Case No. VSO-0093, 26 DOE ¶ 82,757 (H.O. Wieker Sept. 23, 1996)

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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 XXXXX's.

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing: April 24, 1996

Case Number: VSO-0093

This Opinion concerns the eligibility of XXXXX (hereinafter "the individual") for restoration of an access authorization. This care involves the individual's harassment of a female co-worker. The regulations governing the individual's eligibility 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." This opinion will consider whether, based on the testimony and other evidence presented in this proceeding, the individual's access authorization should be restored.

I. PROCEDURAL BACKGROUND

This administrative review proceeding was commenced by the issuance of a Notification Letter to the individual on March 4, 1996. That Notification Letter stated that information in the possession of the Department of Energy's XXXXX Field Office (DOE/XXXXX) created a substantial doubt concerning the individual's eligibility for an access authorization. The Notification Letter specified that the individual harassed a female coworker (hereinafter the "reporting co-worker"). According to the Notification Letter, such harassment is the type of "unusual conduct" which demonstrates a lack of "reliability" and therefore constitutes a security concern pursuant to 10 C.F.R. § 710.8(l) (Criterion L). In addition the

Notification Letter specified that the individual has a "mental condition" which causes a significant "defect in judgment" and therefore constitutes a security concern pursuant to § 710.8(h) (Criterion H).

On March 21, 1996, the individual requested a hearing. The DOE/XXXXX forwarded the request to the Office of Hearings and Appeals (OHA). On April 30, 1996, I was appointed the Hearing Officer in this matter. In accordance with 10 C.F.R. § 710.25(e) and (g), the hearing was held.

Eight witnesses gave testimony at the hearing. Two witnesses were called by the DOE/XXXXX. The first was a DOE Security Specialist. The second was Dr. XXXXX, M.D. (hereinafter the DOE/XXXXX consulting psychiatrist). The individual called five witnesses. Four of those witnesses were co-workers who testified as to their favorable opinion of the reliability of the individual. The individual's fifth witness was also a co-worker. He testified about the behavior of a friend of the reporting co-worker. The individual also testified at the hearing. During his testimony he described the behavior of the reporting co-worker. He believes that the behavior of the reporting co-worker explains his behavior in a manner that mitigates the security concerns caused by his actions.

II. FACTUAL BACKGROUND

On June 15, 1995, the reporting co-worker was interviewed by the DOE/XXXXX.<1> The specific events she described in that interview are not currently in dispute.

Beginning in early 1993 the individual and the reporting co-worker had a number of casual contacts at DOE/XXXXX. Late in December 1993 the individual gave the reporting co-worker a Christmas card. He also left a message on her voice mail giving his home telephone number and requesting that she call him. The reporting co-worker did not return the call.

There were no further contacts until March 1994, when the individual called the reporting co-worker several times and asked her to go out with him on a date. She refused. After his telephone requests for dates were refused, the individual visited the reporting co-worker at her desk. During that visit he again asked her to go out on a date. She refused and told the individual to stop asking her for dates. The individual again called the reporting co-worker and left a voice mail message indicating that they should talk. During this period the reporting co-worker believes the individual was following her around two buildings at DOE/XXXXX. She discussed her distress over the situation with her supervisor. Her supervisor discussed the matter with his own supervisor (hereinafter the counseling supervisor). The counseling supervisor talked with the individual and instructed him to have no further contact with the reporting co-worker.

For a number of months thereafter, no contact between the individual and the reporting co-worker took place. The next contact occurred in December 1994. At that time the individual left a message on the reporting co-worker's office voice mail with his phone number and a suggestion that they "get together." The reporting co-worker did not return the individual's telephone call. Instead, she called the DOE/XXXXX Affirmative Action counselor. The counselor and her supervisor listened to the voice mail message.

There was no further contact until March 9, 1995, when the reporting co-worker and the individual saw each other in one of the DOE/XXXXX cafeterias. That evening, the reporting co-worker saw the individual parked in front of her apartment. Later that night the individual telephoned the reporting co-worker at her home. She refused to talk with him and hung up. After a few minutes the individual called again. This time the telephone was answered by a friend of the reporting co-worker. The reporting co-worker reported the incident to the local police department.<2>

The reporting co-worker informed the DOE/XXXXX that she filed a complaint with the local police regarding the individual. In that complaint she alleged the individual was engaging in sexual harassment. As a result of learning of the local police investigation, a DOE/XXXXX manager held a meeting on March 13, 1995, in which he told the individual to have no contact with the reporting co-worker.<3>

After learning of the report to the local police, the DOE/XXXXX Internal Security Office conducted a security interview with the individual. After the security interview, the DOE/XXXXX arranged for the individual to have a psychiatric examination, with the DOE/XXXXX consulting psychiatrist.

The DOE/XXXXX consulting psychiatrist conducted a two-hour interview with the individual. He then administered the MMPI-II examination. He submitted his written report to the DOE/XXXXX on August 7, 1995.<4> The report by the consulting psychiatrist summarizes the individual's description of the facts in the following manner:

[The individual] said that charges were filed against him by a coworker. He said that this occurred in 1994, though he could not give me the date. He said, "She was interested in me and I got interested in her." He said that she approached him. They would run into each other at work. She told him that she liked the way he looked and she held eye contact with him. With that, he thought that she was interested in seeing him on a social level. He then asked her out for a drink and he acknowledges that she refused. He then called her on a few other times and she continued to refuse. He said that he called her at work no more than twice a month. He said he went to her house no more than twice. He said that he never cruised around her house. He never waited for her to enter her house. He denied ever sitting in a car outside of her house. He denied following her or spying on her. He does not understand why she thought that he was harassing her. He went on to say that she actually came to his house on two occasions. He said that he saw her drive by his place a couple of times. In the investigating report, it said that he heard this female whisper his name against his window. I asked him if this is true and he said that in fact it was true. He did see her drive around and did hear her whisper his name. He went on to deny any other harassing and continued to believe that she was provocative with him and interested in him. ...

Exhibit 7 at 2.

III. STANDARD OF REVIEW

Administrative review is authorized when the existence of derogatory information leaves unresolved questions about an individual's eligibility for access authorization. A hearing is "for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization." 10 C.F.R. § 710.21(b)(6).

The regulations state that "[t]he decision as to access authorization is a comprehensive, common-sense judgment, made after consideration of all the 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). A DOE administrative review proceeding under 10 C.F.R. Part 710 is not a criminal case, in which the burden is on the government to prove the defendant guilty beyond a reasonable doubt. In this type of case, we are dealing with a different standard which is designed to protect national security interests. The burden is on the individual to come forward at the hearing with testimony or evidence to convince the Hearing Officer that restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.27(d).

IV. ANALYSIS OF CRITERION L SECURITY CONCERN

Security concerns under Criterion L relate to whether an individual has engaged in unusual conduct which tends to show he is not reliable or trustworthy. In my view, the individual has clearly demonstrated weak evaluative skills which have a direct negative impact on his trustworthiness and reliability. In connection with the individual's evaluative abilities the DOE/XXXXX consulting psychiatrist testified as follows:

He couldn't understand the relationship he was having with this female or the nonexistent relationship with this female. And he continued to pursue it; putting both himself in danger; putting her job and his job in jeopardy. . . .

Transcript at 105. This confirms my overall conclusion that the individual has engaged in unusual behavior outside accepted norms. He was unable to refrain from continued inappropriate behavior toward the reporting co-worker. It is this pattern of unusual behavior outside the norm that gives rise to the security concern that the individual may not be trustworthy and reliable. It is reasonable to conclude that a person's demonstrated inability to behave reliably in one sphere of life leads to a higher probability that he would make inappropriate decisions in other areas, including those involving national security. See Personnel Security Hearing, 25 DOE ¶ 82,791 at 85,799 (1996)(individual's refusal to comply with tax laws raises serious concerns regarding his ability or willingness to comply with regulations governing classified material and information), aff'd, 25 DOE ¶ 83,015 (1996).

The individual's testimony at the hearing indicates that he recognizes that repeated telephone calls and two visits to the reporting co-worker's house are considered by DOE Officials and the local police department to be unacceptable behavior. He also recognizes that others believe that his actions have caused the reporting co-worker to feel threatened and intimidated. Transcript at 128.

Accordingly, I find that the individual has engaged in "unusual conduct" under Criterion L, tending to show that he is not reliable and trustworthy.

At the hearing, the individual presented testimony which he believes mitigates the security concerns caused by his behavior. He contends that his actions toward the reporting co-worker were reasonable because her behavior toward him invited his attention. The individual believes that the reporting co-worker stared at him in a seductive way. In addition the individual believes that the reporting co-worker came to his home and stood below his window and called his name. The individual believes that since the reporting co-worker induced him to continue to call her, I should find his behavior has been explained and mitigated and therefore does not constitute a security concern.

I believe that it will be useful to preface my analysis of the individual's mitigating argument with some remarks as to the individual's obligation to produce evidence to support his factual assertions underlying his mitigation arguments and his burden of persuasion with regard to those facts. In security clearance cases, the burden is clearly on the individual to provide sufficient and appropriate evidence to establish that the mitigating circumstances he is asserting are true. Personnel Security Hearing (Case No. VSO-0094), 25 DOE ¶ ______ (1996). In other words, he must provide objective outside corroboration of the contentions that form the basis of his mitigation arguments. Furthermore, this outside evidence must clearly demonstrate that the contentions which form the basis of his mitigation claim are true.

After considering the individual's demeanor and the clarity of his testimony, I am convinced that he honestly believes that the reporting co-worker encouraged his behavior. The individual appeared sincere and candid when he testified that she stared at him seductively in the cafeteria and called his name from under the window of his home. Transcript at 43.

Nevertheless, this testimony alone does not satisfy the individual's burden of producing reasonable evidence to show that the co-worker in fact acted to encourage his behavior. I informed the individual prior to the hearing about his obligation to produce relevant evidence concerning his assertions about the reporting co-worker. I indicated that it is not possible for the Hearing Officer to specify precisely all witnesses whose testimony might be necessary. However, I noted that the individual's witness list included only character witnesses who apparently were not familiar with his relationship with the reporting co-worker. I informed the individual of his burden of producing testimony that specifically supports his factual assertions regarding the behavior of the reporting co-worker. I particularly stressed that in order to convince me that the one-sided relationship described in the DOE/XXXXX submissions is not accurate, the individual should call witnesses who had knowledge of the reporting co-worker's relationship with the individual. I confirmed this suggestion four weeks before the hearing in a letter to the individual. In that letter I indicated:

I do not believe that the testimony of character witnesses who have no personal knowledge of the events described in the Notification Letter will necessarily be sufficient to overcome the DOE's stated security concerns. If you believe that the allegations made in the notification letter are incorrect, you should consider calling individuals with knowledge of the relationship described in the notification letter who can explain and refute those allegations.

The individual did not call any such witness and therefore relies on his own description of events to convince me that the reporting co-worker induced his behavior. Transcript at 132. Even though the individual's testimony is unrefuted, it is nevertheless uncorroborated and therefore insufficient.

I also find the testimony is ineffective to support his claim of mitigation. I simply do not believe the individual's testimony is a realistic assessment of the actions of the reporting co-worker. The individual was unable to accurately evaluate the significance of the most casual of chance encounters. Each time he saw the woman he believed she was scheming to send him signals of romantic interest. However, as discussed above, the reporting co-worker turned down the individual's request for dates and had a responsible DOE/XXXXX official counsel the individual to have no further contact with the reporting co-worker. It is hard to imagine clearer signals of non-interest. Despite these clear signals, on the basis of mere eye-contact in the cafeteria, the individual decided to go to the reporting co-worker's home. In view of the facts, common sense indicates that the individual's interpretation of those events is not grounded in reality.<5>

I therefore do not believe the individual's assertion that the reporting co-worker invited his attention. Accordingly, I find the individual has not established a factual basis for the mitigation argument which he raises.<6>

V. ANALYSIS OF CRITERION H SECURITY CONCERN

The Criterion H security concern is based on the DOE/XXXXX consulting psychiatrist's diagnosis that the individual has mental problems that adversely affect his judgment. In his thorough and thoughtful report the DOE/XXXXX consulting psychiatrist diagnosed the individual as having depressive disorder. The report indicated:

This subject's lack of insight and combination of psychiatric disorders which require treatment are at this point interfering with his judgment and reliability.

Exhibit 7 at 10.

His prognosis for the individual is as follows:

This subject's delusional disorder and depression seem to be going hand in hand. Whether he was depressed first or delusional first is difficult to ascertain and therefore I have left the diagnosis as depressive disorder, not otherwise specified. This combination of disorders is very difficult to treat. At this point, he is somaticizing and deluding himself rather than dealing with his decreased self esteem and social inhibitions. Therefore, at this point, he is not amenable to treatment. Nevertheless, treatment of a behavioral type is indicated and would be helpful so as to avoid future problems and repetitions.

Exhibit 7 at 9.

The individual offers one basis for mitigating the concern expressed by the consulting psychiatrist. He asked the consulting psychiatrist if his diagnosis would change if the reporting co-worker had in fact induced his behavior. The consulting psychiatrist indicated that if that was true he would have to rethink his diagnosis. Transcript at 125. However, as I discussed in detail above, I do not believe that his behavior was induced by the reporting co-worker. Therefore, I find no ground for mitigation here. Under these circumstances, I find that the individual's delusional disorder and depression have resulted in antisocial behavior that reflects a defect in judgment and reliability. This behavior raises serious concerns regarding the individual's ability to comply with security procedures. See Personnel Security Hearing, 25 DOE ¶ 82,755 at 85,541 (1995) (individual's mental depression results in antisocial actions and raises concerns regarding reliability and judgment in security matters), aff'd, 25 DOE ¶ 83,002 (1995).

VI. MITIGATION THROUGH CHARACTER WITNESSES

The individual has also attempted to mitigate both Criterion L and H security concerns through the testimony of four co-workers. Each had worked closely with the individual and considered himself to be a friend of the individual. Each witness testified that he believes the individual was reliable and a good worker. Each praised the individual for his dedication to raising his two children. I am confident that their testimony is accurate.

However, each of the four witnesses indicated that he was only generally aware of the allegations made by the reporting co-worker. None was aware that the individual had been counseled to stay away from the reporting co-worker or that the individual believed the reporting co-worker was engaging in suggestive activities. For instance, the first character witness was asked:

Q. Did he (the individual) ever tell you if he dated her in the past?

A. I asked him, I said, Have you ever said anything to the lady? He said, ..., I have never said anything to the lady, and I don't know why she's making these complaints against me.

Transcript at 19.

The fourth character witness was asked:

Q. Did you ever discuss it with [the individual]?

A. Yeah, we talked a little bit about it, but you know, he's never really said too much about it, you know, other than there was some kind of harassment or something like that. And I never asked him. I don't really barge into anyone's business . . .

Q. Who was harassing who?

A. ... But the little bit that I do know about it, she had filed charges against [the individual] and sexual harassment charges. Now, what happened there, you know, transpired, I have no idea. You know it happens.

Transcript at 58.

I do not believe that these co-workers were aware of the reasons for the DOE security concern and therefore I find they did not provide any meaningful views on whether those security concerns were accurate. Nor do I believe that the general character testimony provided mitigates the severity of the DOE security concerns.

VII. CONCLUSION

I therefore believe that the DOE/XXXXX properly invoked 10 C.F.R. § 710.8(h) and (l) in connection with the individual's access authorization. In view of the record before me, I am not persuaded that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. Accordingly, I find that the individual's access authorization should not be restored.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of the Hearing Officer's Opinion within 30 calendar days of receipt of the Opinion. Any such request must be filed with the Director, Office of Hearings and Appeals, Washington, D.C. 20585-0107, and served on the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files its request for review. The party seeking review must serve a copy of its statement on the other party, who may file a response with 20 days of receipt of the statement.

Thomas L. Wieker

Hearing Officer

Office of Hearings and Appeals

Date:

<1>/ The transcript of that interview is Exhibit 16 in the record of this proceeding.

<2>/ The March 9, 1995, local police investigatory report is Exhibit 9 in this proceeding.

<3>/ The March 13, 1995, memorandum of the manager is part of Exhibit 10 in this proceeding.

<4>/ The August 7, 1996, report submitted by the consulting psychiatrist appears as Exhibit 7 in the record of this proceeding.

<5>/ One witness who testified for the individual indicated that a friend of the reporting co-worker had come up to the individual's cafeteria table and stared angrily at the individual. The individual believes that the reporting co-worker's friend's action was inappropriate. He believes this lends credibility to his assertion that the reporting co-worker's actions induced his behavior. The testimony indicates the friend of the reporting co-worker was angry with the individual. I believe that the friend's actions in the cafeteria were caused by her anger and do not reflect on the behavior of the reporting co-worker. I therefore do not believe that this testimony suggests that the reporting co-worker's behavior was inappropriate.

<6>/ If it were shown that the reporting co-worker induced his behavior, I would then consider whether the individual has established that restoring his access authorization would be clearly consistent with the national interest. See Personnel Security Hearing, 25 DOE ¶ _____ (1996) (Individual established that he had completed a rehabilitation program. However, the program was not sufficient to establish that restoring his access authorization would be clearly consistent with the national interest).