[Redacted], Melania U., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004735 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elias R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022001685 Hearing No. 480-2019-00705X Agency No. HS-CBP-01014-2018 DECISION On February 3, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 4, 2022, final order concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency’s Customs and Border Protection (CBP) facility in Las Vegas, Nevada. Specifically, Complainant applied for a position as a Customs and Border Protection Officer and received a tentative offer of employment. See Report of Investigation (ROI) at 235. The tentative offer stated that all applicants would be required to complete the pre-employment requirements, including passing a polygraph examination. See ROI at 235. 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. 2022001685 2 The Deputy Director (DD) of the Credibility Assessment Division (CAD), which oversees the administration of polygraph examinations, explained that passing a polygraph examination means receiving a result of “No Significant Responses.” See ROI at 159. Complainant’s polygraph examination received a result of “No Opinion-Countermeasures,” which does not meet the standard for passing. See ROI at 164. The Agency therefore withdrew its tentative offer based on Complainant’s failure to pass the polygraph examination. See ROI at 302. Believing that the Agency’s actions were discriminatory, on April 23, 2018, Complainant filed an EEO complaint alleging he was discriminated against on the basis of race (Asian) when: 1. On January 25, 2018, the Agency withdrew a tentative offer of employment based on Complainant’s failure to pass a polygraph examination; 2. On January 17, 2018, Complainant was subjected to abusive treatment during a polygraph examination; and 3. On September 29, 2017, Complainant learned that he was not granted reciprocity for his previous polygraph examination.2 The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). See ROI at 132-33. Complainant appealed to the Office of Federal Operations, which reversed the dismissal and remanded the matter to the Agency for further processing. See Elias R. v. Dep’t of Homeland Sec’y, EEOC Appeal No. 2019000772 (Feb. 15, 2019). 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. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 29, 2020, motion for a decision without a hearing. On December 1, 2021, the AJ issued a decision. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for withdrawing its tentative offer (Claim 1), namely Complainant’s unsuccessful polygraph examination results. The AJ also concluded that Complainant failed to provide evidence that his polygraph examination results were tainted by any consideration of his race or was pretext for discrimination. As for Complainant’s claim of harassment (Claim 2) during the polygraph examination, the AJ found that Complainant’s general assertions that the examiner failed to maintain decorum during the examination were not supportive by any evidence that the actions were related to his protected basis. Subsequently, on January 4, 2022, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that he was discriminated against as alleged. 2 The Agency initially dismissed Claim 3 for untimely counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). See ROI at 108-109. On appeal, Complainant does not challenge the dismissal of Claim 3 and acknowledges that “claims 3 is not at issue.” 2022001685 3 CONTENTIONS ON APPEAL On appeal, Complainant contends the AJ erred by not making inferences in his favor. Additionally, he argues that the results of the polygraph examination were unfairly tainted by racial animus and based on false allegations regarding Complainant’s past. In response, the Agency asserts that the AJ properly concluded that there were no material issues of fact in dispute and Complainant relies only on subjective assertions of pretext without providing evidence. ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. 2022001685 4 A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserts generally that there are material facts in dispute by casting doubt on the veracity of the Agency’s evidence, but without providing evidence to support his contentions. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, her issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022001685 5 In the instant case, we find that the Agency articulated a legitimate, nondiscriminatory reason for withdrawing its tentative offer of employment. The tentative offer stated that the offer was contingent on an applicant successfully completing all the pre-employment requirements, including passing a polygraph examination. See ROI at 235. DD stated that a result of “No Significant Responses” is required in order to pass the polygraph examination, and Complainant’s polygraph examination received a result of “No Opinion-Countermeasures.” See ROI at 159, 164. He further explained that a polygraph examiner (PE) makes a preliminary decision, based on his or her analysis of the physiological data collected during the polygraph. See ROI at 159. A Quality Control Reviewer (QCR) then conducts an objective analysis of the examination and if the QCR concurs with the PE’s preliminary decision, the results of the polygraph examination become final. See ROI at 159. In this case, DD stated that both the PE and the QCR agreed that Complainant’s polygraph did not meet the standard to pass and therefore the result was final. See ROI at 164. The Human Resources Branch Chief confirmed that a tentative offer would be withdrawn for any applicant who does not meet all the pre- employment requirements, including passing the polygraph examination. See ROI at 171. We further find that the Agency also articulated legitimate, nondiscriminatory reasons for its actions with respect to the conduct of the polygraph examination. Complainant alleged that PE’s questions, concerning his contacts with relatives in China or Taiwan, were discriminatory. DD noted that some of the routine questions on the CBP’s pre-employment polygraph examination deal with national security issues, including mishandling of classified information and unauthorized foreign contacts. See ROI at 163. He explained that there are standard questions about foreign contacts, including contacts with family members in foreign countries. See ROI at 163. In addition, the Agency submitted affidavits from two other QCRs, who independently reviewed the tapes of Complainant’s polygraph examination and concluded that the examination was conducted consistent with CAD standards. See Agency’s Mot. For Summary Judgment, Ex. B. Complainant argues that the Agency’s reasons were a pretext for discrimination because PE displayed racial discriminatory animus. Specifically, Complainant challenges PE’s questioning Complainant about his relatives in China, the reference to Complainant as a “businessman”, and PE’s statement, “You have a bachelor’s degree. You’re educated. Now sit back and listen to the English.” However, Complainant’s mere assertions that PE’s demeanor was hostile and his questions offensive, he does establish racial discrimination. We note that DD affirmed that PE’s questions, about Complainant’s relatives in China, were part of the CBP’s routine questions into an applicant’s foreign contacts. See ROI at 163. In addition, Complainant himself acknowledged in his deposition that he believed CBP would ask all applicants about their foreign contacts. See Agency’s Mot. For Summary Judgment, Ex. E at 50-51. We further find that it is not clear that PE’s reference to Complainant as a “businessman” or commenting “You have a bachelor’s degree. You’re educated. Now sit back and listen to the English”, were due to Complainant’s race. Even if PE’s comments could be taken to refer to Complainant’s race, Complainant has not established a nexus between the comments and his failure to pass the polygraph examination. 2022001685 6 We note that Complainant’s non-passing polygraph examination result was not based solely on PE’s evaluation. Rather, three different members of the CAD Quality Control Division independently reviewed the examination and agreed with PE’s opinion that Complainant did not pass. See Agency’s Mot. For Summary Judgment, Ex. B. Therefore, we find that Complainant has not met his burden in showing that the Agency’s proffered reasons were pretext for discrimination. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore find that the Agency properly concluded that Complainant did not establish that he was subjected to disparate treatment due to his race. To the extent Complainant challenges the substance of the polygraph examination, we note that the Commission does not have jurisdiction to adjudicate the validity of a security clearance or the substance of a security clearance determination. See Ward v. Dep’t of Justice, EEOC Appeal No. 01973627 (April 20, 2000). Therefore, we will not address Complainant’s contentions challenging the conclusions contained in the CAD report. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his race. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). To the extent Complainant bases his claim of harassment on his assertion that PE threatened to physically throw him out of the room, the instant record does not establish the alleged incident occurred. The Agency has submitted affidavits from three QCRs, who reviewed the audio recording of the polygraph examination and attested that the recording indicates that PE stated, “I physically saw you move”, but did not threaten Complainant at any point. See Agency’s Mot. For Summary Judgment, Ex. B. Moreover, we note that it is not clear from the context of the polygraph examination that any of PE’s statements which Complainant considered hostile were connected to Complainant’s race. 2022001685 7 Rather, the QCRs asserted that Complainant responded to questions confrontationally and PE was trying to de-escalate the situation. See Agency’s Mot. For Summary Judgment, Ex. B. Complainant’s subjective assertions that PE’s questions were racially offensive, and that PE treated him in a demeaning and offensive manner, are not sufficient to meet the objectively offensive standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). 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 order finding no discrimination. 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. 2022001685 8 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. 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 April 5, 2022 Date