Elias R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.Download PDFEqual Employment Opportunity CommissionFeb 15, 20192019000772 (E.E.O.C. Feb. 15, 2019) Copy Citation 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. 2019000772 2 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. 2019000772 3 (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. 2019000772 4 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), 2019000772 5 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. 2019000772 6 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 Copy with citationCopy as parenthetical citation