0120160604
02-18-2016
Diego V.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Diego V.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120160604
Agency No. DIA-2015-00044
DECISION
On November 4, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision dated July 20, 2015, and received on October 5, 2015, dismissing his 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
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer, GG-13 at 7400 Pentagon in Washington, DC.
On April 2, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Asian - Chinese) and national origin (born in Hong Kong - United Kingdom (UK), but perceived as Hong Kong People's Republic of China) when on February 5, 2015, he was subjected to a hostile work environment when an Agency contract polygrapher, in giving him his once every five year counterintelligence polygraph examination, posed questions and made comments specifically oriented to his race and national origin such as:
a. "Have you done anything to bring shame to your family?"
b. Questioned his honor and integrity by repeatedly saying that he had to ensure he will not take secrets and board a plane to China; and
c. Accused him of potential involvement with the Chinese Intelligence Service.
Pursuant to Agency policy, Complainant was due for his required once every five year counterintelligence polygraph. Knowing he was due one, he contacted the responsible Agency program to schedule one. Because his first polygraph on February 2, 2015, was inconclusive, he was scheduled again on February 5, 2015. In her report, the equal employment opportunity (EEO) counselor relayed that the polygrapher said that if Complainant failed a question, he had to ask follow-up questions and since Complainant admitted wrong doing, e.g., lying to a girlfriend, he asked follow up questions. The EEO counselor relayed that the polygrapher said that participants get two opportunities to pass a polygraph examination. Despite the second test being inconclusive, Complainant was given a third polygraph on April 27, 2015, which he passed.
Effective May 2, 2015, Complainant transferred to another Agency - the Department of the Navy.
The Agency dismissed the complaint for being moot. It reasoned that Complainant no longer worked for the Agency and did not request compensatory damages. It also dismissed the complaint for failure to state a claim. It reasoned that the polygraph was part of the process to determine Complainant's fitness to hold a security clearance and have access to classified information. Citing Department of the Navy v. Egan, 484 U.S. 518, 529 (1988), it found that the Commission did not have jurisdiction to review the complaint since it challenges the means, methods and judgments of the Agency in national security investigation. It also found that Complainant's complaint failed to state a claim because he was not aggrieved - the matter did not rise to the level of actionable harassment.
On appeal, Complainant concedes that he did not request compensatory damages prior to his appeal. But he writes that he incurred expenses when he consulted an attorney to explore his options, and he now requests "compensatory damages" for the costs incurred by him for this. He also argues that he was harmed - he resigned on May 1, 2015, because he feared the Agency would retaliate against him for filing his EEO complaint, and that even though he passed the polygraph he felt threatened that the Agency would find other reasons to revoke his security clearance which was required by his job, so he left the Agency and forfeited his rewarding career with potential overseas assignments, and started over again at the Navy. Complainant resigned and transferred after he filed his formal complaint.
In opposition to the appeal, the Agency argues that the FAD should be affirmed. It observes that Complainant's clearance was neither revoked nor suspended, and it took no adverse action against him for his two inclusive results.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Applying the above, we find that Complainant's complaint about an unpleasant polygraph examination by a contract polygrapher fails to rise to the level of actionable harassment. While Complainant writes on appeal that he left the Agency because he feared retaliation and felt threatened that the Agency would find other reasons to revoke his security clearance, he did not allege constructive discharge in his complaint, and his fear about something the Agency could potentially do, after he passed his third polygraph, does not render him aggrieved.
Because we find that Complainant is not aggrieved, we need not rule on whether his complaint was moot or failed to state a claim pursuant to Egan.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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, P.O. Box 77960, Washington, DC 20013. 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 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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. 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 18, 2016
__________________
Date
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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