[Redacted], Maximo C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020004061 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020004061 Hearing No. 570-2019-00894X Agency No. FBI-2018-00049 DECISION On July 6, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Administrative Judge’s February 10, 2020 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant was a Contractor who had applied and received a conditional offer for a Video Communications Specialist position at the Agency’s Forensic Audio/Video and Image Analysis Unit, Operational Technology Division facility in Quantico, Virginia. 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. 2 On June 4, 2020, the Agency issued a letter to Complainant indicating that, because it had not issued a final decision within 40 days of the Administrative Judge’s decision, the Administrative Judge’s decision had become the Agency’s final decision. The instant appeal followed. 2 2020004061 On December 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical) when: 1. On October 19, 2017, Complainant learned he failed the polygraph examination and was subsequently denied access to FBI space, information, and IT systems; 2. Since November 21, 2017, the Security Division has failed to rule on his appeal regarding his polygraph failure; and 3. On March 13, 2018, his appeal to the FBI polygraph unit was denied. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts: Complainant attested that he was diagnosed with chronic developmental stuttering when he was around 12 years old. He attested that he used speech therapy and learned diaphragmatic breathing to eliminate his stuttering that has become second nature to him. Complainant attested that he began working as a contractor in the Agency’s Operational Technology Division in February 2017 and he took his first polygraph examination (a “security” polygraph) in April 2017. He attested that he recognized the breathing sensor on the polygraph machine as almost identical to the respiratory sensor he used in speech therapy. He attested that he believed he passed this first polygraph examination. Complainant attested that he applied for a direct hire full-time position with the Agency and received a conditional job offer on May 17, 2017. He attested that he was required to take a “lifestyle” polygraph examination on July 10, 2017. Complainant appeared for the examination. He attested that he was tired after the weekend and the examiner (Examiner1) did not allow him to finish his coffee prior to taking the test. Complainant attested that Examiner1 instructed him to keep still and “get into a rhythm” with his breathing, which Complainant indicated caused him to focus on his breathing. Complainant attested that, after about 45 minutes of sitting in the room, he fell asleep. He attested that Examiner1 told him that he was going to get an inconclusive result. Complainant attested that, at the end of the examination, Examiner1 told him that he did not get the response he was looking for and Complainant would have to retake the test. Complainant attested that, on July 18, 2017, when he returned for the second polygraph examination, the examiner (Examiner2) asked him why he thought the prior examination was inconclusive and Complainant responded that he had “dozed off.” Complainant attested that he asked Examiner2 about the breathing on the test and whether he had to answer the questions immediately following them; demonstrated his breathing technique; and Examiner2 told him that it could be interpreted as an implementation of countermeasures. Complainant attested that Examiner2 instructed him to “breathe normally.” 3 2020004061 Complainant attested that he did not tell Examiner2 about his disability because he did not think Examiner2 would believe him and he was not comfortable disclosing the information. Complainant attested that he believed he was not supposed to use his diaphragmatic breathing, but he felt himself revert to that technique throughout the test. Complainant attested that, on October 19, 2017, he was called to a meeting in the Unit Chief’s office with the Chief Security Officer (“CSO”), given a letter indicating that he was denied access to FBI space and IT systems, and told that it was because of his polygraph examination results. Complainant attested that he asked if he could retake the test and was told there was nothing they could do. He attested that he was then escorted out of the building. Complainant attested that asked the Reasonable Accommodation Program for assistance and contacted his speech therapist for medical documentation. Complainant attributed his failing the polygraph test to his controlled breathing. The Unit Chief attested that he was Complainant’s supervisor (“Supervisor”). Supervisor attested that he was not aware of Complainant’s disability until approximately October 2012, around the time Complainant left the Agency. He attested that, after Complainant had been escorted from the facility, Complainant emailed him, informing him that he had a stuttering condition and that Complainant believed his controlled breathing technique interfered with the examination results. Supervisor attested CSO contacted him and told him that Complainant was going to be “walked out” because the Security Division had identified a problem with Complainant’s security clearance, Complainant would have to be terminated immediately and would not be hired into the full-time position. Supervisor attested that he called Complainant to his office and, during the conversation, Complainant mentioned his stuttering disability and that he used a breathing technique to control it. CSO attested that she received an electronic communication (EC), dated July 24, 2017, indicating that Complainant took two polygraph examinations in July 2017 and the second examination indicated deception. She attested that she had received another EC, dated October 18, 2017, requesting that she facilitate Complainant’s removal. She attested that her standard procedure was to provide the denial of access letter to the individual being terminated and that she would have informed him that he was no longer allowed access to FBI space and had him sing non-disclosure agreements prior to walking him out. Examiner2 attested that, prior to conducting polygraph examinations, he receives the Personnel Security Interview (PSI) of the applicant and he reviews the PSI prior to administering the examination. He attested that he follows the same procedures for every applicant and his determinations are subjected to a quality control process with the Regional Polygraph Program Manager. He attested that he reviewed Complainant’s FD-498 which documented the conclusion from the examination and, noted that, because Complainant was a contractor, his examination was for suitability, as he had already passed the security series. Examiner2 attested that the results of Complainant’s July 10, 2017 examination were inconclusive. 4 2020004061 He explained that he would have explained the previous results with Complainant and told him each question beforehand and Complainant’s documentation did not indicate that he had any questions or issues. Examiner2 attested that, at the end of the first series of questions, the results were inconclusive, but after the second set of questions, the results indicated deception, which was conclusive, and he ended the test. Examiner2 attested that he informed Complainant that he did not pass the test and Complainant did not have any information as to why he failed. Examiner2 did not recall Complainant asking him about breathing or telling him that he fell asleep during his first examination. Examiner2 attested that it is his practice, when people appear nervous, to tell them to act normally. Members of the Suitability Appeals Board (SAB) attested to the polygraph examination appeals process, noting that during the Fall of 2017, the SAB process was reorganized, and appeals boards were not held during that time, and they were also not held in December and January because of the holidays. For these reasons, the first full SAB appeals meetings were held in February 2018. One member of the SAB (Member1) prepared Complainant’s appeal. Member1 attested that, upon review of all the documents relevant to Complainant’s appeal, he did not observe any technical deficiencies in the administration of the test, and it appeared that the test was performed in accordance with the applicable standards. Member1 attested that Complainant’s results clearly indicated deception, the test was conducted correctly, and there were no technical errors during the test. He attested that he reviewed the test after having been informed that Complainant was using controlled breathing and the results indicated that Complainant’s physiology was excellent and there was no evidence of any abnormal physiology affecting the test. Member1 also attested that the documents showed that the examiner specifically asked Complainant if he had any medical or physiological conditions that would affect the test and Complainant indicated he had gout and marked his overall health was excellent. Member1 noted that Complainant passed the security portion of the polygraph examination, which suggested that he was able to take a polygraph examination. Members of the SAB attested that the voting members discussed all cases prior to voting and that, because Complainant’s appeal was denied, the majority of the voting members would have upheld Member1’s recommendation. Other Members attested that they found it significant that Complainant was able to pass the security portion of the polygraph examination, including without a reasonable accommodation. A Reasonable Accommodation Request Medical Inquiry Form dated October 24, 2017 indicates that Complainant has residual effects from chronic stuttering, with a diagnosis of chronic developmental stuttering. It indicates that Complainant was last seen in therapy in 1996 and, at that time treatment was considered successful, but there was concern that Complainant was prone to relapse. It indicates that Complainant’s activities of breathing and speaking are affected, as well as his respiratory functions. Regarding limitations, it indicates that Complainant continues to need to employ conscious breath control in order to speak fluently in stress situations. 5 2020004061 It provides that, regarding the polygraph examination, Complainant’s ability to participate reliably in a test involving respiratory monitoring is seriously impaired because his stuttering was characterized by clavicular breathing approaching hyperventilation, accompanied by laryngeal blocking. He further provides that Complainant’s limitations that interfere with his job functions include using a respiratory sensor (chest bellows) and notes that Complainant was trained to control his breathing and speech timing to enable him to attain certain timing targets resulting in perceptually fluent speech. It indicates that “normal” breathing for his is different and the control he exerts renders the respiratory portion of the polygraph examination unreliable. The comments provide that Complainant was not a good candidate for achieving a reliable lie-detector test using chest bellows. It provides the suggestion that the alternative data from the polygraph (i.e. galvanic skin response, blood pressure, etc.) be given greater weight than the respiratory response and the tester might consider eliminating chest bellows since it could trigger control behaviors which might be misinterpreted. A letter dated October 25, 2017, from the Agency’s Security Division to Complainant indicates that, based on the results of his polygraph examination, the Agency was unable to further process his application, as the results of his polygraph examination were not within acceptable parameters. It indicates that Complainant may request an appeal of this decision within 30 calendar days of receipt of the notice and describes the information needed and procedure for requesting an appeal. A letter dated October 26, 2017, from Complainant to the Agency, indicates that, in addition to the Agency’s letter informing him that his application was no longer going to be processed due to the results of his polygraph examination, on October 19, 2017, Complainant was informed by the Unit Chief/Chief Security Officer that, also due to the results of the polygraph examination, she was being denied access to Agency space, information, and IT systems. The letter states that, as reflected in a Medical Inquiry Form, the controlled breathing methods that Complainant used to treat his disability render the respiratory portion of the polygraph examination unreliable and Complainant was not a good candidate for achieving reliable lie-detector tests using test bellows, as was used in his prior polygraph examination. The letter indicates that Complainant’s provider recommended eliminating use of the chest bellows in a subsequent polygraph examination and, instead, using alternative means, such as galvanic skin response and blood pressure measurements to obtain a reliable result. The letter also states that, in light of the provider’s recommendations and Complainant’s stuttering disability, he requests the following reasonable accommodations be provided: (1) that the results of his prior polygraph examination be disregarded for the purpose of his conditional job offer and he be provided another polygraph examination for that purpose; (2) that he be permitted to use therapeutic breathing techniques necessary to treat his stuttering ability during that examination, without penalty or affect on the results; and (3) that the use of chest bellows or any form of respiratory monitoring be eliminated from that examination, so that he may breathe as he normally would in order to treat his stuttering disability. A letter dated November 21, 2017 from Complainant to the Agency indicates that Complainant wanted to appeal his polygraph examination results. 6 2020004061 It indicates that Complainant has had a stuttering disability at least since 1990 and asserts that he is entitled to a reasonable accommodation, noting that his disability and therapeutic breathing techniques effected the results of his polygraph examination and made those results unreliable. It reiterates the request for the reasonable accommodations provided in the October 26, 2017 letter and generally offers explanations and reasons as to why they should be provided. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on February 10, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal, Complainant argues that the AJ’s decision fails to address claims (2) and (3) of his complaint and the complaint, therefore, must be remanded for further processing, including discovery. With respect to claim (1), Complainant argues that he was denied his right to discovery and the opportunity to cross-examine witnesses, to test their credibility and challenge any incorrect information in the report of investigation. His appeal includes other arguments, including that there are genuine disputes of material facts. In response to the appeal, the Agency argues that the Commission should affirm the AJ’s decision granting summary judgment and the Agency’s final decision. In so doing, the Agency generally asserts that Complainant has failed to produce sufficient evidence of discrimination, noting that the Commission has found employers generally have broad discretion to set policies and carry out personnel decisions. Further, the Agency asserts that Complainant failed to address or rebut the Agency’s proffered explanation that the Agency denied his appeal for a retest and rescinded the job offer because he failed the polygraph examination. The Agency also asserts that the Agency had no notice of Complainant’s alleged disability prior to his taking the polygraph examinations and has failed to offer evidence of pretext. ANALYSIS AND FINDINGS Summary Judgment We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 7 2020004061 In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non- moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Reasonable Accommodation We note at the outset that the record shows that Complainant arguably suggests that he should have been given a polygraph examination with the assistance of a reasonable accommodation. Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See, e.g., Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). Here, Complainant acknowledges that he had not made his alleged disability known to the Agency prior to being administered the polygraph examination in question. Therefore, the Agency did not have an obligation to accommodate him at that time. As will be discussed below, to the extent Complainant sought to appeal the suitability determination and be granted a retest with an accommodation, his appeal was denied and he was not given the retest, with or without an accommodation. 8 2020004061 Disparate Treatment Complainant’s allegations give rise to claims of disparate treatment. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can establish a prima facie case of disability discrimination by establishing that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) he was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). Here, assuming arguendo that Complainant established a prima facie case, we find his claim still fails, as the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Agency explained that Complainant was denied access to FBI space, information and IT systems following his failure of the polygraph examination because passing the polygraph examination was required for employment by the Agency. The record establishes that passing the polygraph examination was a condition of employment and, while Complainant’s first polygraph examination was inconclusive, his second examination produced results that indicated deception. Although Complainant has alleged that the Agency acted discriminately, the record fails to show that Complainant’s disability was known to Agency officials when he was asked to take the examination and, subsequently, removed from Agency facilities and denied access to Agency information and IT as a consequence of failing the examination. Therefore, Complainant cannot establish a claim of disability discrimination with respect to these events. Complainant also alleged disparate treatment when the Agency failed to rule on his appeal by November 21, 2017 and ultimately denied his appeal on March 13, 2018. The Agency explained that the SAB process was being reorganized during the Fall of 2017 and SAB did not hold meetings during the holiday season of December and January, which resulted in the first SAB appeals meetings being held in February 2018. The Agency also explained that Complainant’s appeal was denied because the results of the polygraph examination in question indicated deception, the test was conducted correctly, and there were no technical errors during the test; the results indicated that Complainant’s physiology was excellent and there was no evidence of any abnormal physiology affecting the test; with respect to medical conditions, Complainant had indicated prior to the examination that his overall health was excellent; and the fact that Complainant passed the security portion of the polygraph examination suggested that he was able to take a polygraph 9 2020004061 examination. Although Complainant has alleged discrimination based on his disability, he has failed to show that the Agency’s reasons were pretext for discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 10 2020004061 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 November 8, 2021 Date