Case No. VSO-0151, 26 DOE ¶ 82,793 (H.O. Cronin September 10, 1997)

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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 XXXXXXX's.

September 10, 1997

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Name of Case:Personnel Security Hearing

Date of Filing:March 31, 1997

Case Number: VSO-0151

This opinion concerns the eligibility of XXXXXXXXXXX ("the individual") for continued access authorization under the regulations set forth at 10 C.F.R. Part 710, "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material.(1)The individual's access authorization was suspended by an office of the Department of Energy (the DOE Office). As explained below, it is my opinion that the individual's access authorization should not be restored.

I. Procedural Background

The individual is a DOE employee whose position required that he possess an access authorization. Over a number of years, the DOE Office received unfavorable information regarding the individual's conduct allegedly indicating that he had harassed three female co-workers and his ex-spouse. Pursuant to 10 C.F.R. § 710.9(a), several recorded Personnel Security Interviews (PSIs) were conducted with the individual. Additionally, the DOE Office requested that the individual be evaluated by a board-certified DOE contractor psychiatrist (DOE Psychiatrist). The DOE Psychiatrist issued two reports regarding the individual and concluded that the individual suffered from mental illnesses that could affect his judgment or reliability. Because the concerns regarding the individual were not resolved by the PSIs or the DOE Psychiatrist's reports, the DOE Office suspended the individual's access authorization and requested from the Director of the Office of Safeguards and Security the authority to conduct an administrative review proceeding under 10 C.F.R. Part 710, Subpart A.

The administrative review proceeding began with the issuance of a Notification Letter. That letter informed the individual that information in the possession of the DOE created a substantial doubt concerning his eligibility for access authorization. In accordance with 10 C.F.R. § 710.21, Enclosure 1 of the Notification Letter included a statement describing the derogatory information. In a letter dated January 30, 1997, the individual requested a hearing regarding the allegations contained in the Notification Letter. The DOE Office forwarded the individual's request for a hearing to the DOE's Office of Hearings and Appeals. On April 2, 1997, I was appointed the Hearing Officer in this matter.

A telephone conference and hearing were subsequently held within the time periods specified in 10 C.F.R. § 710.25(f) and (g). At the hearing, the DOE Counsel presented two witnesses, a DOE Personnel Security Specialist and the DOE Psychiatrist. In addition to the individual, five witnesses testified on his behalf: three coworkers and two acquaintances. During the course of this proceeding the DOE Counsel submitted 56 exhibits (Exs.) and the individual submitted one exhibit which contained, among other materials, sworn statements from two coworkers. (2) On August 11, 1997, I received the transcript of the hearing (hereinafter cited as Hearing Tr.).

II. Statement of Derogatory Information & the Individual's Response

In Enclosure 1 of the Notification Letter, the DOE Office alleges derogatory information under Subsections 710.8(h) (Criterion H) and 710.8(l) (Criterion L). Criterion H pertains to information that an individual has

[a]n illness or mental condition of a nature which, in the opinion of a board certified Psychiatrist, other licensed physician or a licensed clinical psychologist, causes, or may cause, a significant defect in judgment or reliability.

10 C.F.R. § 710.8(h). Criterion L describes derogatory information indicating that the individual has

[e]ngaged in any unusual conduct or is subject to any circumstances which tend to show that the individual is not honest, reliable or trustworthy; or which furnishes reason to believe that the individual may be subject to pressure, coercion, exploitation, or duress which may cause the individual to act contrary to the best interest of national security.

10 C.F.R. § 710.8(l). The information presented in support of the Criterion L allegation is briefly summarized below. (3)

Enclosure 1 describes a series of incidents in which the individual is alleged to have harassed three female co-workers during the period from 1989 to 1996. During this period, the individual is alleged to have had or attempted to have a romantic relationship with each of the co-workers. When each of the co-workers indicated that she did not wish to be romantically involved with the individual, the individual is alleged to have engaged in various harassing acts toward each woman such as: repeatedly telephoning the co-worker concerned; repeated attempts via the phone or in person to persuade the co-worker concerned to resume the relationship; repeatedly visiting or being within close physical proximity with the co-worker concerned at the workplace even though she had indicated that she no longer wished any contact with the individual; sending presents to a co-worker despite the fact the co-worker concerned had previously indicated that she did not wish to be given such presents; and physically following the co-worker concerned at work as well as in the community.

The individual also is alleged to have engaged in harassment of his ex-wife during their breakup and divorce. After the individual and his ex-wife separated, the individual is alleged to have made numerous phone calls to his ex-wife's parent's house attempting to speak with his ex-wife.

With regard to Criterion H, Enclosure 1 referenced the information listed under Criterion L. In addition, it listed other derogatory information which is described as follows. On April 18 and April 30, 1996, the individual underwent a psychiatric evaluation by the DOE Psychiatrist. The DOE Psychiatrist issued two reports in which he diagnosed the individual as suffering from a depressive disorder and mixed personality disorder. The DOE Psychiatrist also concluded that the individual suffered from illnesses that cause a significant defect in judgment and reliability.

In a submission dated January 30, 1997, the individual requested a hearing on the allegations contained in the Notification Letter but did not respond to any of the specific allegations. Pursuant to 10 C.F.R. § 710.21(b)(5), the individual's submission is deemed to be a general denial of all of the allegations contained in the Notification Letter.

III. Standard of Review

The DOE 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). Among the factors I have considered in rendering this Opinion concerning the individual's eligibility for access authorization are the following: the nature, extent, and seriousness of his conduct; the circumstances surrounding the conduct; including knowledgeable participation; the frequency and recency of the conduct; his age and maturity at the time of the conduct; the voluntariness of his participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for his conduct, the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence. See 10 C.F.R. §§ 710.7(c), 710.27(a).

It must be emphasized that 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. See Personnel Security Hearing (Case No. VSO-0078), 25 DOE ¶ 82,802 at 85,834, aff'd, 25 DOE ¶ 83,016 (1996) (VSO-0078). In this type of case, we are dealing with a different standard, one that is designed to protect national security interests. 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). Once the DOE has made a showing of derogatory information raising security concerns, the burden is on the individual to come forward at the hearing with evidence to convince the DOE that granting him access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." VSO-0078, 25 DOE at 85,834 (quoting 10 C.F.R. § 710.27(d)). This standard implies that there is a strong presumption against the granting or restoring of a security clearance. See Personnel Security Review (Case No. VSA-0057), 25 DOE ¶ 83,009 at 86,539 (1996) (citing Dep't of Navy v. Egan, 484 U.S. 518, 531 (1988), and Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)). Consequently, it is necessary and appropriate to place the burden of persuasion on the individual in cases involving national security issues. Personnel Security Hearing (Case No. VSO-0002), 24 DOE ¶ 82,752 at 85,511 (1995). As discussed below, after carefully considering the entire record, I find that the individual has not met this burden.

IV. Findings of Fact and Analysis

A. Criterion L

The derogatory information regarding the individual concerns his personal interactions with his ex- wife and three female co-workers. I will make a separate factual finding regarding the information pertaining to the individual's ex-spouse and each co-worker separately and then discuss the security implications raised by this information. (4)

(1) Individual's ex-spouse

On one occasion before their separation, the individual had a heated argument with his ex-spouse. During this argument, the individual pointed an unloaded shotgun at himself and asked his ex-spouse whether he should "end it all." Ex. 18 at 103-105 (individual's February 12, 1996 PSI). Subsequently, in June 1990, the individual separated from his ex-spouse. Id. at 73. Immediately after this separation, the individual made numerous daily phone calls to his ex-spouse, who was staying with her mother. The individual would call his ex-spouse as many as four times daily. Ex. 31 at 13-15 (individual's June 7, 1996 PSI). On occasions where the individual's ex-spouse would hang up on the individual, the individual would call and hang up or let the phone ring 8 to 10 times. Ex. 18 at 73; Ex. 22 at 4 (case evaluation report pertaining to 1995 Office of Personnel and Management background check on individual). Eventually, the individual's ex-mother-in-law told the individual to cease calling her telephone number because of the numerous arguments the individual and his spouse were having. Ex. 18 at 5-6. In November 1991, the individual failed to return his daughter to his ex-spouse from a scheduled visit. Ex. 31 at 33. At that time of the visit, the individual's ex-spouse had legal custody of the child. Id. at 31. Ultimately, the individual did return his daughter to his ex-spouse. Id. at 37.

At the hearing, the individual did not present any evidence contesting the accuracy of the derogatory information regarding the harassment of his ex-spouse. In reviewing the individual's PSIs, I note that he essentially has not denied the accuracy of the derogatory information described above. However, with regard to his failure to return his daughter, the individual stated in a PSI that he kept his daughter because his ex-spouse informed him that she was not going to honor her promise to live in the same city he lived. That promise was an incentive for him to agree to a custody arrangement in which he would have custody of their son and she would have custody of their daughter. Ex. 31 at 31. Upon failing to return his daughter he asked for an emergency court hearing to request custody of both his children. Id. at 35. The individual was denied custody of his daughter at that hearing and returned his daughter to his ex-spouse. Id. at 37.

The facts above regarding the individual's conduct towards his ex-wife demonstrate a number of instances where the individual has not shown reliability or trustworthiness. The calling his ex-spouse numerous times appears to be a form of harassment towards his ex-spouse especially since the individual has admitted that after an argument he would call and hang up or let the phone ring for 8 to 10 times. Ex. 18 at 73; see also Ex. 22 at 4. At a PSI the individual eventually realized the problem with this conduct on the phone ". . . and what I learned quickly is uh . . . just quit buggin' her. And if I need to talk with her, I was more than willing to leave a message with the machine or with her folks." Ex. 18 at 73.

The individual's failure to return his daughter after a scheduled visit also demonstrates a lack of reliability. While the individual may have felt justified in keeping his daughter in order to keep his children together, he should have returned his daughter to his ex-spouse in compliance with his custody agreement. The individual could have requested a hearing challenging his ex-spouse's plan to move. This failure to honor his custody agreement demonstrates an instance where the individual lacked reliability, although its import is mitigated somewhat by the fact that after he improperly kept his daughter he did seek judicial relief.

The individual's action with the shotgun also demonstrate a lack of judgment and reliability. The individual stated in a PSI that he could not have fired the shotgun while he pointed it at his head and that it was unloaded. This act is significant in light of the fact that it occurred during a heated argument between himself and his then wife and at a point in his life when he was having problems at his job and at home. See Ex. 18 at 103. Further the individual admits that at one point the shotgun was pointed at his then spouse. Id. at 104-105. Additionally, the individual stated that during this incident he was attempting to put the shotgun away since "[I] was in the right frame of mind to know that I didn't want it [the shotgun] too available." Id. at 104. The individual's use of even an unloaded shotgun to threaten harm to himself shows questionable reliability and judgment.

In sum, the individual's conduct towards his ex-wife demonstrates that the individual has shown questionable reliability and trustworthiness. While these incidents occurred a number of years ago the derogatory information pertaining to the three female co-workers gives them relevance for my opinion regarding the individual's suitability for continued access clearance.

(2) Employee A

In May of 1990, Employee A began employment at the DOE site at which the individual was employed. Ex. 43 at 2 (Employee A interview summary). At the start of their relationship Employee A informed the individual that she wanted only to be friends with the individual. Id.; Ex. 22 at 3. The individual and Employee A went out to dinner several times and attended a health club together. Ex. 22 at 3. However, the individual began to repeatedly request a romantic relationship with Employee A, which she would consistently refuse. Id. Because the individual was so persistent in his requests for a romantic relationship, Employee A decided to end her relationship with the individual. Id. Nevertheless, she later resumed her friendship with the individual after talking with him at the health club. During the resumption of their friendship, the individual would occasionally stop by Employee A's office. Id. The individual again began to continually insist that their relationship become romantic and would bring up the subject while visiting her office and as she worked out at the health club. Ex. 43 at 2. Consequently, Employee A asked the individual to stay away. Ex. 22 at 3. Despite this request, the individual continued to visit and call Employee A. Id. Employee A contacted the Industrial Relations Department regarding the individual. The Industrial Relations Department advised her to have a supervisor contact the individual and inform the individual to cease contact with her. Ex. 43 at 2. The supervisor contacted the individual sometime in mid to late 1992. Since the supervisor's conversation with the individual, the individual has not had any non-professional contact with Employee A except for one occasion in 1995 while both were in the health club. During that meeting the individual sought to apologize to Employee A for having had to involve her in his various investigations by security officials at the DOE facility where they worked. Ex. 22 at 3-4; Ex. 18 at 43-47, 133.

At the hearing, the individual testified that the description of his conduct contained in the Notification Letter (describing most of the findings above) was basically accurate. Tr. at 205. The individual conduct in continuing to visit with and call Employee A after she had indicated that she no longer wished to see him constitutes harassment. Significantly, the individual's harassing conduct required the intervention of Employee A's supervisor. I find that the individual's conduct regarding Employee A demonstrates a lack of judgment and reliability. The individual's lack of reliability is typified by the fact that even after being given a warning by Employee A's supervisor and being involved in harassment allegations concerning Employee B, the individual nevertheless still contacted Employee A in 1995.

(3) Employee B

In April 1993, the individual met Employee B, a co-worker at the DOE facility where the individual worked. Ex 45 at 2 (Employee B PSI). On April 27, 1994, Employee B separated from her husband and rented a room at the individual's residence. Id. at 3, 41. After she moved to the individual's residence, Employee B and the individual had an intimate romantic relationship lasting approximately a week. Id. at 32, 43. On May 23, 1994, Employee B moved out of the individual's residence with police assistance. Id. at 8.

After Employee B moved out of the individual's residence, the individual made a number of calls to her and her family even though she had informed him that she no longer wished to talk to him. Ex. 45 at 9-10, 28, 38; Ex. 38 at 36, 53-54 (individual's April 13, 1995 PSI). The individual also mailed to Employee B's father a letter expressing his love for Employee B and stating his desire for a long term relationship with her. Ex. 47; Ex. 38 at 64. On May 31, 1994 the individual loaded his truck with Employee B's belongings and drove to their job site in an attempt to return her property. Ex. 45 at 10-11; Ex. 38 at 24. When the individual refused to allow Employee B's friend to pick up various items from his truck, she asked that he throw the items away. Ex. 45 at 11; Ind. Ex. 1 (May 31, 1994 Datebook page).The individual refused and Employee B subsequently picked up the items from his residence. Id. at 11-12; Ex. 38 at 16. After Employee B picked up various item from the individual's residence, the individual began to mail other property she had left at his residence (such as tires, silverware and soap) to Employee B at her parents residence. Ex. 45 at 13; Ex. 38 at 66-69, 133-34. Employee B sent the individual a letter dated July 7, 1994 stating that she wanted no contact with him via mail. Ex. 36 at 4.

In September 1994, the individual mailed to Employee B a letter regarding the ending of relationships. Ex. 45 at 24-25; Ex. 38 at 85. Later that month, the individual made physical contact with Employee B on two separate occasions and once blocked a passage way such that she would be deliberately forced to pass the individual in close proximity. Ex. 45 at 22, 25. Beginning in September 1994, Employee B also began to receive catalogues she considered "obscene" at her family's and brother's residences. Id. at 29-30. During September and October of 1994, Employee B noticed on several occasions that the individual was following her in his truck. Id. at 31-34. The individual's employer suspended him for a week for his conduct towards Employee B. Ex. 38 at 33- 34, 123-124.

While the individual has not challenged most of the factual findings described above, the individual challenges the DOE's allegations that some of his conduct towards Employee B constitutes harassment. Specifically, the individual asserts that his bringing Employee B's property to the DOE work site was not an act of harassment since his supervisor encouraged him to bring Employee B's property to work in order to give it to her. See Ind. Ex. 1 (May 31, 1994 Datebook page).With regard to the allegation that he harassed Employee B by mailing her property to her, the individual asserts that the EEO counsellor instructed him to mail these items to her and that he stopped mailing her property once he received her July 7, 1994 letter on July 23, 1994. Consequently, the individual argues that his mailing of these items should not be construed as harassment. The individual also asserts that the letter he sent to Employee B's father was sent for the purpose of insuring that she receive the money she had left in one of his accounts. Tr. at 196. The individual also denies intentionally sending any catalogues to Employee B and asserted that the U.S. Post Office forwarded the catalogues. Tr. at 192, 205. In support of this assertion, the individual has submitted recently dated mail addressed to Employee B at his address. See Ind. Ex. 1. (copies of envelopes addressed to Employee B). Additionally, the individual asserts that his following Employee B were the result of his coincidentally driving at the same location as Employee B. The individual has also submitted into the record pages from a 1994 Datebook containing what he claims are his contemporaneous notes and recollections regarding various interactions with Employee B. See Ind. Ex. 1 (Datebook pages).

After examining all of the evidence in the record, I cannot conclude that the individual's sending of Employee B's property via the mail is harassment; nor can I conclude that the "obscene" catalogues originated from the individual. The transcript of one of the individual's PSIs indicates that the interrogator informed the individual that the EEO Counsellor had stated that he had recommended to the individual that he should mail Employee B's property to her and that the EEO Counsellor then told the individual to stop mailing the property after Employee B complained to him regarding the mail. Ex. 31 at 69. Given this fact and the lack of evidence that the individual mailed property after receiving Employee B's letter or being told by the EEO Counsellor to stop, I cannot conclude that the mailing of property was an act of harassment. With regard to the catalogues, while the individual has admitted forwarding Frederick's of Hollywood and possibly forwarding Adam and Eve catalogues to Employee B, there is no evidence in the record as to what "obscene" catalogues Employee B actually received. (5) Consequently, I can not conclude that it was the individual who was responsible for her receiving the catalogues.

Despite these findings, I believe the individual conducted numerous acts of harassment against Employee B. The acts include making unwanted and numerous phone calls to Employee B; writing a letter to Employee B's father; inappropriately bringing her property to work; making unwanted physical contact with Employee B; and following Employee B in his vehicle.

In a PSI, the individual has essentially admitted that the allegations regarding harassing phone calls made by Employee B are accurate. When asked if the harassment charges made by his ex-spouse and Employees A and B were lies, the individual stated

Alright, I wouldn't say they're lyin'. I mean, it depends on the term, how you look at the term. Uh. . . when you first break up with somebody, you try to get ahold of 'em, you're tryin' to get 'em their possessions or get your possessions, either way. Uh . . . you're tryin' and establish communications. Tension's really tight. Uh . . . yeah, say . . . say you call and get hung up on; and you call 'em back, and you may hang up on them. I mean it goes both ways. . . . And. . . and yeah it is a form of harassment; I'm not gonna argue that.

Ex. 31 at 80. I believe that the individual's answer is an admission that he engaged in harassing conduct via the phone to Employee B. Additionally, Employee B's account is consistent with the individual's ex-spouse's account of having received harassing calls upon the breakup of their relationship.

While the individual has vigorously disputed that his letter to Employee B's father was an act of harassment, I must disagree. At the hearing, the individual testified that he wrote her father to determine if she had received money that he had sent her and that he had no intent to harass her. Tr. at 196. After examining the letter, I find the individual's explanation unconvincing. The letter begins with a profession of the individual's love of Employee B and a very detailed description of the individual's relationship with her. Ex. 47 at 1-2. The letter goes on to describe the breakup of the relationship, Employee B's alleged comments regarding how she got another employee fired for harassment, and the two alleged threats Employee B made to complain to management regarding the individual's harassment of her. Id. at 2. The letter also states that a check is enclosed and requests that Employee B's father give her the money since Employee B would not speak with or accept money from the individual. Id. at 3. The letter also asked for forgiveness for the pain the individual's situation with his daughter caused. While I believe that the letter did have as one of its purposes to return money to Employee B, it also served to cause embarrassment to Employee B by detailing facts of her relationship with the individual's. I find this letter unusual since the individual was a close friend with Employee B's father, whom he had met previously only once or twice. See Ex. 45 at 10,13. Thus, I believe the sending of this letter was motivated in part to harass Employee B.

I also believe that the individual's conduct in bringing Employee B's property to work was harassment. From the record before me, it appears that the individual brought Employee B's property to work without her prior agreement. See Ind. Ex. 1 (May 31, 1994 Datebook page). Given the individual's prior behavior with his ex-spouse and Employees A and B, I believe that the act of bringing her property to work was motivated in part by his desire to get Employee B to interact with him. This conclusion is supported by the response the individual gave when asked in a PSI to describe an example of his "controlling" behavior. The individual cited as an example his attempt to get Employee B to set a definite time and place where she would pick up her property. Ex. 18 at 100. I believe that attempting to force another to personally interact with an individual is harassment. In mitigation, the individual submitted copies of his 1994 Datebook pages which contain entries indicating that he had brought Employee B's property to work on advice of his supervisor in order that he could give the property to her. See Ind. Ex. 1 (May 31, 1994 Datebook page). Despite the Datebook page, I do not believe that the individual has submitted sufficient evidence by which I can conclude that his actions were motivated solely by his supervisor's advice. Even assuming arguendo that the individual's supervisor advised him to bring Employee B's property on the work site, there is no evidence that this supervisor instructed the individual to refuse to let Employee B's friend take possession of some of the items or to disregard Employee B's instructions to put the property outside.

I also find that the individual harassed Employee B by physically touching her at work and by blocking her pathway so that she would be forced to pass next to the individual. In two PSIs, the individual denied intentionally brushing against Employee B's shoulder or deliberately blocking her path so she would be forced to pass him. Ex. 38 at 78; Ex. 18 at 9. However, in the PSIs, the individual admitted he might have unintentionally contacted Employee B's shoulder and that at a social event he did move so that Employee B could pass him. Ex. 38 at 78; Ex. 18 at 26. Given the individual's prior relationship with Employee B, and the nature of his prior conduct and interaction with Employee B I find it unlikely that he "unintentionally" ran into Employee B or just coincidentally blocked Employee B's path.

Lastly, I find that the individual harassed Employee B by deliberately following her. In his PSIs, the individual denied intentionally following Employee B. Ex. 38 at 28-29, 58, 61-62. At the hearing, he submitted a copy of his Datebook in which he recorded two incidents where he was coincidentally in the same location as employee B while driving. See Ind. Ex. 1 (June 4 and 6, 1994 Datebook pages). The entries record that on one occasion he was going out for food and in the other he was going to the gym. Id. See also Ex. 38 at 28-29. In reference to this charge, the individual stated in a PSI that on several occasions he had coincidentally been driving in the same location as Employee B. Ex. 38 at 58, 61-62. In a PSI, Employee B stated that on several occasions the individual noticed that she was driving and would immediately speed up until he was directly behind her. Ex. 45 at 15, 31-34. While I do not discount the possibility that the individual was accidentally in the same location as Employee B, given that they work at the same job site, I believe it is likely that the individual deliberately followed Employee B on some occasions. Supporting my finding is a summary from an interview from a witness who stated that she saw the individual follow Employee B around a building at the DOE site, when it was apparent in her opinion that Employee B did not want contact with the individual. See Ex. 41. Given the evidence in the record, I believe that the individual harassed Employee B at times by following her in his vehicle.

In sum, I believe that the individual has committed a number of acts of harassment against Employee B. (6)Although the individual did not admit to harassing Employee B, he ultimately accepted a suspension from his position without pay for a week for these actions. The individual's conduct toward Employee B demonstrates a substantial lack of reliability, especially in light of the fact that a supervisor warned him three years earlier regarding similar behavior towards Employee A.

(4) Employee C

The individual met Employee C in May 1995. Shortly thereafter, Employee C and the individual began to see each other socially. At the beginning of their relationship, Employee C informed the individual that she wanted only a friendly relationship and did not want any romantic involvement. Ex. 10 at 4, 8 (Employee C's PSI). The individual and Employee C went out together socially approximately eight to ten times. Ex. 10 at 17-18. In August 1995, Employee C informed the individual that because of his insistence on a romantic relationship, she wanted all contact between them to cease. Ex. 10 at 4, 8. In September 1995, the individual began to visit Employee C at her office workplace at the DOE facility. Ex. 10 at 5-6, 50-51. Employee C would tell the individual numerous times during these visits to leave her alone. Ex. 10 at 8-10, 44. While the individual would sometimes leave when asked, he sometimes would leave only to return seconds later to ask "[i]s this what you really want?" Id. at 10. After periods where the individual and Employee C did not see each other, the individual would approach Employee C and inform her that he could not stand not seeing her or being able to talk to her. Id. at 48.

In February 1996, the individual and Employee C were moved to the same building. Ex. 10 at 4, 45. Employee C needed to be escorted into the building and the individual would often be the escort on many occasions. Id. at 4-5. The individual would continue to try to visit with Employee C. Ex 10 at 45, 54, 58-59. On various occasions, the individual would walk by Employee C and attempt to touch her arm. Ex. 10 at 55-57. When the individual was told by Employee C not to touch her the individual would laugh and touch her hand anyway. Id. The individual also gave Employee C a number of gifts despite Employee C's informing him that she did not want to accept presents from the individual. Ex. 10 at 15-16.

In March 1996, Employee C learned through a mutual friend that the individual was pretending that Employee C was dead. Ex.10 at 10-11. Upon hearing this, Employee C became anxious. Id. Employee C's anxiety was increased when the individual attempted to give her a gift. When Employee C ignored the individual's attempt to give her the present he remarked that the gift was "in remembrance of you." Ex. 10 at 14. On another occasion, the individual came into Employee C's office with a necklace that he claimed symbolized their friendship. The individual directed Employee C to look and then broke the necklace apart and threw it in a trash can. Ex. 10 at 57-58.

In May 1996, the individual twice contacted Employee C. At a softball game, the individual volunteered to play on the same team as Employee C and would run from the outfield in order to always sit next to her in the dugout. Ex. 10 at 30-32. After the game, Employee C went to her automobile only to be followed by the individual. Employee C managed to drive away before the individual could talk to her. Id..

At the hearing, the individual in general denied attempting harass to Employee C. Tr. at 202. In his defense the individual testified that early in their relationship he sought a romantic relationship but after Employee C indicated to him that she did not want a relationship, he did not attempt to pursue that type of relationship. Id. at 203. The individual testified that he subsequently met another woman with whom he had a romantic affair. Id. Later, that relationship broke up and the individual testified that he turned to Employee C as a friend to talk to about his most recently terminated relationship. Id. The individual went on to say that once Employee C informed him that she did not want any contact with him he avoided contact with her. Id. at 202. The individual specifically denied ever having spent one and a half hours at the individual's work area especially since it was just a cubicle. Id. at 210.

I do not find the individual's explanation of his conduct regarding Employee C to be convincing. Given the individual's prior conduct with his ex-spouse and Employee A, the account given by Employee C in her PSI (Ex. 10) is credible. (7) Additionally, the individual's account of his interactions with Employee C does not seem to be very plausible. First, one of the individual's own witnesses testified that several of Employee C's friends had informed him that the individual should cease contact with Employee C. Tr. at 76-77, 84. The witness then informed the individual and advised him that he should stay away from Employee C. Id. at 85. Thus it seems very likely that the individual knew that Employee C no longer wished to see him. Even if the individual had not been directly informed by Employee C that she no longer wanted to see him, he was on notice that Employee C no longer wished to see him and that he should have made some type of inquiry to see if this was the case. (8) Further, I find that even if the individual's purpose in seeking to be with Employee C was for consolation regarding his recently ended relationship, that fact would not excuse the individual for continuing to attempt to see Employee C when he had been told that she did not want to see him. In sum, I find Employee C's account to be more credible than the individual's. The course of conduct outlined in the finding of fact above indicates that the individual engaged in numerous acts of harassment against the Employee C. These actions indicate a serious lack of reliability given the fact that the individual had already a long history of being warned about similar conduct regarding other female co-workers at his work site.

(5) Security Concerns

The record before me indicates that the individual has engaged in a course of conduct in which over the course of six years he has harassed his ex-wife and three female co-workers. The nature of this harassment has taken numerous forms such as inappropriate telephone calls, persistent visits at work against the wishes of the co-workers involved, following people, giving unwanted presents. The individual has acted in a totally inappropriate manner regarding four individuals despite warnings, a suspension and several personnel security interviews regarding his conduct. I agree with the Personnel Security Specialist that the individual's behavior puts his trustworthiness, reliability and judgment specifically in question. See Tr. at 16. The individual's inability to conform his conduct in this aspect of his life raises the question whether he could make inappropriate decisions in other areas. See Personnel Security Hearing (Case No. VSO-0061), 25 DOE ¶ 82,791 at 85,779 (1996). Consequently, I find that the individual's inappropriate behavior towards his ex-spouse and his co- workers implicates a significant security concern. See Personnel Security Hearing (Case No. VSO- 0093), 26 DOE ¶ 82,757 (1996) (individual who had commits acts of sexual harassment found to have demonstrated unusual conduct implicating his trustworthiness and reliability). As such, I believe that the DOE appropriately invoked Criterion L.

(6) Other Mitigating Factors

At the hearing the individual offered other evidence in mitigation of the derogatory information described above. Specifically the individual offered testimony from five individuals who are friends and co-workers along with sworn statements from two other co-workers. All of these persons testified to the individual's good character. The testimony and statements offered by the witnesses and declarants however is not sufficient for me to find mitigation in this case. Four of the five witnesses testified that he or she had no direct knowledge of the individual's interactions with the women who made allegations against him or any of the specific alleged harassing incidents. See Tr. at 27, 44, 94 and 171. Only one witness had any knowledge regarding some of the individual's interaction with the complaining employees. Tr. at 75-81. Likewise, the two submitted statements contain little information regarding the individual's interactions with the co-workers or the alleged incidents. See Ind. Ex. 1 (statements dated June 17 and June 25, 1994). The witnesses and the individuals who submitted statements do not provide much if any assistance in resolving the claims of harassment. Further, the evidence in the record regarding the individual's conduct towards the women in question in my opinion outweighs the character testimony given by the witnesses and declarants.

The witnesses and declarants also testified to the individual's good work performance. The individual has also submitted a copy of a recent job performance rating. See Ind. Ex. 1 (January 6, 1997 Non- Supervisory Evaluation Form). The form indicates that the individual exceeds expectations in various evaluation categories. However, evidence of superior work performance, in and of itself, is insufficient to mitigate a security concern absent additional evidence of mitigation, rehabilitation or reformation directly related to the security concern at issue. Personnel Security Hearing (Case No. VSO-0109), 26 DOE ¶ 82,783 at 85,734 (1997).

The individual has also submitted a document detailing a number of major events that occurred in 1996 which he believes had a major impact in his life. See Ind. Ex. 1 (undated memo to Hearing

Officer). Specifically, the individual states that in March his relationship with his then current girlfriend ended and that he began to be investigated for harassment. In April, he was required to have an appointment with the DOE Psychiatrist in reference to his clearance and subsequently, in June his clearance was downgraded. The individual also states that in August he started bankruptcy proceedings and that in September his father passed away.

While the individual has experienced a number of recent stressful events, I do not believe that they provide sufficient mitigation of the derogatory information described above. None of the events described above took place during the time of the individual's conduct with his ex-spouse, Employee A or Employee B. Further, if the individual's conduct towards women is related to stress, the possibility exists that the conduct would return during future periods of stress. See Personnel Security Hearing (Case No. VSO-0118), 26 DOE ¶ 82,769 at 85,632 (1996). Given the record before me I can not find that the individual's recent stressful circumstances provide mitigation for the derogatory information described above.

The individual has also testified that he has learned from his experiences and has tried to put his past experiences behind him. Tr. at 216. The individual stated that he has changed his behavior at his work site and now limits his non-work conversation with individuals to an exchange of greetings. Id. Further, the individual testified that he no longer goes to talk with co-workers, especially females, outside of his work organization unless he has business to conduct with them. Id. With regard to the possibility of the individual reforming his conduct, I note that the DOE Psychiatrist testified that in his opinion it was unlikely that a person with the individual's personality characteristics could reform himself but that it was possible. Tr. at 161. However, given the relatively recent nature of the individual's harassing conduct towards Employee C, I do not feel that the individual has demonstrated a sufficient period of reformed behavior that would mitigate the security concerns raised by his conduct.

(7) Summary

The individual's conduct as described above towards his ex-spouse and the three female employees raises serious security concerns about his reliability. Further, the individual has not presented sufficient evidence which would mitigate the security concerns raised by his conduct. The derogatory information presented by the DOE pursuant to Criterion L and the security concerns raised by that information are such that I cannot recommend that the individual's security clearance be restored.(9)

B. Criterion H

As a result of a request by the DOE, the individual underwent a psychiatric examination and evaluation by the DOE Psychiatrist on April 18 and April 30, 1996. As part of this examination, the individual was administered a psychological test, the Minnesota Multiphasic Personality Inventory-II (MMPI-II). The DOE Psychiatrist issued a report dated May 7, 1996 (5/96 Report). In the 5/96 Report the DOE Psychiatrist stated that as part of his examination, he reviewed many of the allegations of the individual's harassment of his ex-spouse and Employees A and B. The DOE Psychiatrist noted that with regard to the allegations of harassment, the individual generally denied wrongdoing or stated that the conduct was unintentional. The DOE Psychiatrist concluded from his examination of the individual and from his review of various DOE case summaries of PSIs and an Office of Personnel and Management background check that there was sufficient reason to doubt the individual's account of the incidents. Specifically, the DOE Psychiatrist noted that the individual changed answers to questions as new information was given; gave vague answers regarding dates; minimized the import of the allegations made against him; and gave inconsistent answers when compared with earlier PSIs. Ex.11 at 16-17 (5/96 Report). As additional support for his conclusion, the DOE Psychiatrist noted that the accounts reported by the female co-workers and the ex-spouse were consistent and that the individual's MMPI-II results indicated that he was attempting to "fake good" and present himself with a more favorable self-image than was realistic. Id. at 17. These accounts and the test results also indicated that the individual was narcissistically inclined and suffered severe depressive reactions following the breakup of relationships. Id. The DOE Psychiatrist noted that the individual becomes "over-involved" with others and takes separation and loss with an excessive amount of anger and depression totally out of proportion and out of context with what has gone on. Id. at 18. The DOE Psychiatrist opined that if the allegations of the individual's ex-wife and Employees A and B are to be believed then he would diagnose the individual as suffering from Depressive Disorder, recurrent, not otherwise specified, and Mixed Personality Disorder with narcissistic and antisocial features. Id. The DOE Psychiatrist also stated that in his opinion both illnesses would cause a significant defect in judgment and reliability. Id. The DOE Psychiatrist stated that if he received additional information regarding the credibility of the complaining women, he would be willing to revisit his opinion. Id.

Shortly after the DOE Psychiatrist issued the 5/96 Report, the DOE asked him to review newly obtained information regarding the individual obtained from Employee C. After reviewing an audio tape of a PSI conducted with Employee C along with a summary of that interview, the DOE Psychiatrist issued an additional psychiatric report regarding the individual (6/96 Report). Ex. 7 at 1. In the 6/96 Report the DOE Psychiatrist stated that the information from Employee C was similar to the information provided by the individual's ex-spouse and Employees A and B and supported the diagnostic impression he explained in the 5/96 Report. Id. at 3. The DOE Psychiatrist elaborated on the diagnosis he made in the 5/96 report by stating that the individual suffered from a personality disorder with features from the "cluster B" antisocial, borderline, histrionic and narcissistic personality disorders. Id. Specifically, the DOE Psychiatrist found that the individual had the following diagnostic characteristics of a narcissistic personality disorder:

Id. at 3. The DOE Psychiatrist also stated that the individual also exhibited the following characteristics of antisocial personality disorder:

Id. Further, the DOE Psychiatrist found that the individual had the following features of a borderline personality disorder:

Id. at 4. Lastly, the DOE Psychiatrist found that the individual had the following features of a histrionic personality disorder:

Id. In the 6/96 Report, the DOE Psychiatrist also confirmed the diagnosis of Depressive Disorder, recurrent, not otherwise specified. Id.

At the hearing the DOE Psychiatrist testified further regarding his clinical findings. See Tr. at 107-66. The DOE Psychiatrist concluded that the individual's combination of problems all interfere with his judgment and reliability. Tr. at 140.

The individual vigorously disputes the DOE Psychiatrist's diagnoses. Each of his witnesses and declarants, testified that in their interactions with the individual he exhibited none of the diagnostic character traits that the DOE Psychiatrist found the individual to possess. See Tr. at 24-39; Tr. at 41- 55; Tr. at 56-87; Tr. at 88-106; Tr. at 166-183; Ind. Ex. 1 (statements dated June 17 and 25, 1997). Additionally, the individual challenges the results of the MMPI-II. Specifically, the individual asserts that he was forced to take the test in the lobby of the DOE Psychiatrist's office under conditions where the light was inadequate and he was confronted with many distractions due to people coming and going. Tr. at 194. The individual testified that he had talked with a psychologist who had several years earlier given him a MMPI test and that the psychologist stated that the MMPI should be administered in a quiet location with no distractions. Id. Consequently, the individual believes the manner in which the DOE Psychiatrist administered the test renders the results invalid. Id.

After considering the evidence and arguments presented by the individual, I find that they are not sufficient for me to reject the DOE Psychiatrist's opinion. While I found the individual's witnesses to be credible, I do not find their testimony convincing. Each of the witnesses and declarants testified that they had no personal knowledge regarding the alleged acts of harassment. This is significant because the DOE Psychiatrist made his determination using the accounts given by the complaining co-workers as well as information and impressions he obtained while interviewing the individual. I also note that the DOE Psychiatrist also testified that the individual could interact with other male and female friends and acquaintances and not demonstrate the diagnostic personality features mentioned in his 6/96 Report. Tr. 159-160. After reviewing the DOE Psychiatrist evaluation and the information before him, I find that the DOE Psychiatrist had an adequate basis for his opinion.

I must also reject the individual's challenge regarding the manner in which the DOE Psychiatrist administered the MMPI-II. The individual's challenge is based upon his account of what a psychologist told him was the optimum conditions for taking the MMPI-II. I cannot give the individual's testimony concerning the proper conditions for administering the MMPI-II much weight especially in light of the fact that he is not an expert in the field of psychological testing and that his information came from a psychologist who has not testified or provided a statement into the record. Without additional evidence, I am not convinced that the conditions under which the individual took the MMPI-II would have affected the validity of the test results. I also note the DOE Psychiatrist made very limited use of the MMPI-II results in reaching his opinion about the individual. The DOE Psychiatrist testified that the MMPI-II results indicates that the individual was trying to give a somewhat favorable self image which was consistent with his own impression during the interview. Tr. at 136. During the hearing, the individual himself essentially validated this finding testifying:

As far as my comments with [the DOE Psychiatrist] when he said I wouldn't give him information, he's right. I was forced to go there, already knowing what the outcome was going to be, because I had spent so many years knowing that once you are sent for psychological evaluation, your clearance would be revoked . . . . And so I went under great protest.

Tr. at 193. Thus, I cannot find sufficient reason to discount the MMPI-II findings.

In sum, after examining the record, I find that the DOE Psychiatrist had an adequate basis for his opinion and that the evidence submitted by the individual is not sufficient for me to reject this opinion. The DOE Psychiatrist testified that in his opinion the individual suffers from illnesses that cause a defect in judgment and reliability. Specifically, the DOE Psychiatrist testified that the individual's problems cause problems in reliability as demonstrated by the individual's continuing conduct in harassing women despite receiving warnings and being subject to numerous PSIs concerning his conduct. Tr. at 140. I believe that the individual's reliability is in serious question given his diagnosed illnesses and the individual's resulting behavior. Thus, the DOE Psychiatrist's diagnoses of Depressive Disorder and Mixed Personality Disorder identify a serious security concern.

The DOE Psychiatrist testified that in order for the individual to be rehabilitated he would have to enter a program of therapy sessions to educate him regarding his behavior. Tr. 151-153. However, the individual has not presented any evidence regarding his participation in any therapy program and as such I cannot find that he has been rehabilitated. Given the record before me, I find the DOE properly invoked Criterion H. The security concerns raised by the Criterion H derogatory information prevent me from recommending that the individual's security clearance be restored.

V. Conclusion

In the above findings of fact and analysis, I have found that there is significant derogatory information in the possession of the DOE Office to provide a sufficient basis for invoking 10 C.F.R. § 710.8(h) and (l) and that the individual has failed to mitigate the serious security concerns raised by the derogatory information discussed above. In view of the record before me, I am unable to find 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, it is my opinion that the individual's access authorization should not be restored.

Either 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. 10 C.F.R. § 710.28(a). Any such request must be filed with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and served on the other party. The party seeking review of the Opinion must file a statement identifying the issues on which he or she wishes the OHA Director to focus. This statement must be filed within 15 calendar days after the party files the request for review. The party seeking review must serve a copy of the statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

Richard A. Cronin, Jr.

Hearing Officer

Office of Hearings and Appeals

Date: September 10, 1997

(1)"An access authorization is an administrative determination that an individual is eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to variously in this Opinion as access authorization or clearance.

(2)At the hearing, the individual submitted a file folder with various separate documents affixed to it. In this Opinion I will cite to this exhibit as "Ind. Ex. 1" with the specific document described parenthetically.

(3)The alleged incidents regarding the three female co-workers and the individual's ex-spouse are more fully described infra in Section IV of the Opinion.

(4)In this Opinion, I will refer to the three individual female co-workers as Employee A, Employee B and Employee C.

(5)The individual has stated in a PSI that even before she moved to his residence, Employee B had ordered items from a Frederick's of Hollywood catalogue and had the items delivered to his residence. Ex. 38 at 95.

(6)As indicated by my citations to the record, in making my findings I have relied in part on the account of the individual's behavior provided by Employee B's PSI (Ex. 45) despite the existence of unfavorable information in the record regarding Employee B. The record contains the individual's allegation that on one occasion he found Employee B at his residence with knives and non-prescription drugs contemplating suicide. See Ex. 36. The record also contains a sheet of paper (with the poem "I Died for Love" copied twice on it) allegedly written by Employee B as a suicide note. Id. Additionally, the individual submitted pages from his 1994 Datebook with notations that Employee B had threatened to turn him in for harassment both before and after she moved out of his residence. See Ind. Ex. 1 (May 21 and June 23, 1994 Datebook pages). The individual also claims that Employee B had used illegal drugs and bragged that she was able to get another individual fired for harassment. See Ex. 36; Ex. 38 at 111; Ex. 47 at 2; see also Ex. 45 at 45-46. The individual also states that her sister-in-law had told him that Employee B had spread false stories regarding family members. See Ex. 27 at 7-8. Despite this information, I find Employee B's account of the individual's behavior to be credible. First, the individual confirmed the basic facts of Employee B's account, such as where and when incidents occurred. Second, Employee B's account of the individual's harassment are consistent with accounts given by the individual's ex-spouse and Employee A. Lastly, most of the unfavorable information comes from statements and written entries the individual himself made. In the present case, without other corroborating evidence, I do not believe that the individual has presented sufficient evidence for me to discount Employee B's account of the individual's behavior.

(7)I make this finding despite evidence offered by the individual impugning Employee C's character. One of the individual's co-workers submitted a sworn written statement in which he asserts that he knows Employee C well and questions the veracity of allegations she made. The coworkers goes on to state his opinion that Employee C is an "extremely unbalanced, manipulative, deceptive and conniving individual." See Ind. Ex. 1 (6/17/97 sworn statement at 2). I give this statement only little weight in light of the co-worker's failure to provide reasons for his opinion or gave any additional information which would cast doubt on Employee C's character.

(8)The witness also testified that he believed that the individual declined to take his advice because the individual had not been directly informed by Employee C to cease contact. Tr. at 85. The witness further testified that he had heard from Employee C's friends that she did not want to see the individual. Tr. at 76-77.

(9) The Notification Letter detailed information concerning a number of other incidents regarding the individual's conduct towards his ex-spouse and Employees B and C upon which I have not made any findings. Since the incidents upon which I have made findings, described supra, are sufficient to determine that DOE properly invoked Criterion L, I do not find it necessary to make findings on all of the incidents mentioned in the Notification Letter.