Elias R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 15, 2019

2019000772 (E.E.O.C. Feb. 15, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Elias R.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 2019000772

Agency No. HS-CBP-01014-2018

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated October 1, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

During the period at issue, Complainant was an applicant for employment at an Agency facility
in Las Vegas, Nevada.

On May 2, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected him to discrimination based on race when:

1. on January 25, 2018, the Agency withdrew a tentative offer of employment based
upon Complainant’s failure to pass a polygraph examination;

2. on January 17, 2018, Complainant was subjected to abusive treatment during a
polygraph examination; and

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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3. on September 29, 2017, Complainant learned that he was not granted reciprocity
for his previous polygraph examination.

On October 1, 2018, the Agency issued a final decision. The Agency stated that the substance of
the instant formal complaint concerned a polygraph examination, and that this matter was part of
a security clearance determination. Because the Agency found that the formal complaint
concerned a security clearance determination, the subject claims were outside of the
Commission’s jurisdiction. The Agency therefore dismissed the formal complaint pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state an actionable claim.

The Agency further determined that the claims also failed to state a claim as the formal
complaint constituted a collateral attack on another forum’s proceeding, and that the appropriate
venue for Complainant to challenge the polygraph examination would have been within the
Agency’s security clearance process.

The instant appeal followed. Complainant stated on appeal that he was not treated ethically or
fairly during the polygraph examination. Complainant asserted that the Polygrapher provided
him with instructions, and then later accused him of manipulating the test by doing the exact
actions which Complainant had been instructed to follow. Complainant asserts that he was
accused of espionage and subjected to discrimination. Complainant also stated that he had
previously successfully passed a polygraph test with the United States Secret Service, but that
the Agency refused to accept those results. Complainant asserted that he knew of other
candidates who had previously passed the United States Secret Service polygraph test, and had
those same results accepted by the Agency. Considering the comparators, Complainant asserts
that he could only imagine his race as the motivating factor for the Agency’s actions.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz
v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

In most instances, the Commission does not have the authority to review the validity of a
security clearance, or the substance of a security clearance determination. See Dep't of the Navy
v. Egan, 484 U.S. 518, 529 (1988); Thierjung v. Dep't of Def. (Def. Mapping Agency), EEOC
Request No. 05880664 (Nov. 2, 1989); see also Policy Guidance on the Use of Nat'l Sec.
Exception contained in 703(g) of Title VII, EEOC Notice No. N-915-041 (May 1, 1989).
However, EEOC does have jurisdiction to review whether an agency has suspended a
complainant's security clearance in a discriminatory manner. See Schroeder v. Dep't of Def.
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(Def. Mapping Agency), EEOC Request No. 05930248 (Apr. 14, 1994); Lyons v. Dep't of the
Navy, EEOC Request No. 05890839 (Mar. 22, 1990).

Here, we disagree with the Agency’s assessment that the subject claims are a challenge to the
validity and substance of a security clearance determination, or that they constitute a collateral
attack on another forum. A review of the record reflects that Complainant claimed he was
treated in a discriminatory manner in the administration of the polygraph exam, and was treated
differently from other similarly situated individuals not of his race with regard to the Agency’s
refusal to accept the results of a previous polygraph. While the polygraph might be reviewed
while making a clearance decision, it was not the security clearance determination itself. The
issues raised by Complainant can be properly adjudicated within the administrative EEO
complaint process.

Therefore, we conclude the Agency's dismissal of the complaint for failure to state a claim was
improper.2 The Agency’s final decision is REVERSED and the complaint is REMANDED to
the Agency for further processing in accordance with the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file and also shall notify Complainant of the
appropriate rights within one hundred fifty (150) calendar days of the date this decision was
issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of
receipt of Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

2 On appeal, the Agency argues, for the first time, that the dismissal should also be upheld due to
Complainant’s alleged failure to timely contact an EEO counselor. However, this ground for
dismissal was not raised by the Agency in its dismissal decision and, therefore, it has been
waived and we will not address it.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
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at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that person
by his or her full name and official title. Failure to do so may result in the dismissal of your case
in court. “Agency” or “department” means the national organization, and not the local office,
facility or department in which you work. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

February 15, 2019
Date