EEOC Appeal 2020001741

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tawanna F.,1
Complainant,
v.
Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 2020001741
Agency No. HS-CBP-01648-2019
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated December 12, 2019, 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complainant was an applicant for Border Patrol Agent, GL-1896, and
Customs & Border Protection Officer, GS-1895, vacancies. Among the “Conditions of
Employment” for both positions, candidates needed to meet the following criteria: be U.S. citizen,
have resided in the U.S. for the past three years, pass a background investigation, pass a polygraph,
and have a driver’s license.
During her polygraph examination, on April 24, 2019, Complainant believed the examiner initially
demonstrated a “favorable impression” of her. A disruptive noise was heard at one point during
the examination. During the next session, the examiner asked Complainant to discuss one of the
questions where she had elevated physiological activity. In response, Complainant described an
early-stage miscarriage and her concern that it was due in part to her vegan diet.
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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The examiner, in Complainant’s view, “made a probing statement to me”. He commented that
there was still time for her to have children. Complainant clarified that she did not want children.
Following the exchange, Complainant believed he no longer held a positive view of her.
On April 30, 2019 Complainant was notified that her tentative employment offers were withdrawn
due to an “unfavorable” polygraph examination. Believing that the Agency’s actions were
discriminatory, Complainant contacted an EEO Counselor on June 12, 2019. Informal efforts to
resolve Complainant’s concerns were unsuccessful. Subsequently, on July 12, 2019, Complainant
filed a formal complaint.
In the instant final decision dated December 12, 2019, the Agency framed the claims as follows:
1. On April 24, 2019, during and immediately after Complainant’s polygraph
examination, the [examiner] acted in a biased manner when he commented
on Complainant’s ability to have children, stated that he favored older
applicants, and judged Complainant based on her willingness to relocate.
2. On April 30, 2019, Complainant’s tentative employment offers were
withdrawn for the following positions, due to an unfavorable polygraph
examination: CBP Officer, GS-1895-05/07/09, advertised under Job
Opportunity Announcement (JBA) Number CBPO DH 18-2, JOA number
CBPO DH GS9-18-2, JOA number CBPO18-8, and JOA number CBPO
GS9-18-8.
3. On May 31, 2019, Complainant’s tentative employment offer for the
position of Border Patrol Agent, GS-1896-05/07, advertised under JOA
number BPA DH 18-2, was withdrawn due to an unfavorable polygraph
examination.
4. ON September 24, 2019, Complainant’s structured interview for the
position of Border Patrol Agent, GS-1896-05/07, advertised under JOA
number BPA DH 19-11, was cancelled due to an unfavorable polygraph
examination.
The Agency dismissed the formal complaint. Specifically, the Agency dismissed claim (1) for
untimely EEO Counselor contact. The Agency reasoned that Complainant’s June 12, 2019 contact
was more than forty-five days after she was given the polygraph examination, on April 24, 2019,
in an allegedly discriminatory manner.
The Agency dismissed claims (2) through (4) for failure to state a claim. According to the Agency,
the tentative offers were withdrawn and an interview cancelled because of the unfavorable
polygraph, and the Commission does not have the authority to review security clearance
determinations.

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Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Claim (1)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.
On appeal, Complainant argues that while she took the polygraph on April 24, 2019, and received
the results on April 30, 2019, it was not until she received a response to her inquiry from the
polygraph division (IA CAD Scheduling) on June 9, 2019, that she realized she was subjected to
discrimination. She initiated contact with an EEO counselor on June 12, 2019. While the
Commission is not persuaded that Complainant did not reasonably suspect discrimination until
June 2019, we do not believe she should have reasonably suspected discrimination prior to learning
the results of her polygraph examination. Complainant specifically alleges that the Agency
polygrapher “showed a bias against me as a female regarding my potential for having children
after gaining employment, and that bias is shown by his unfair determination to fail me on the
polygraph instead of giving me the change to re-test due to the noise that took place.” It is not until
Complainant suffered the discrete harm of an unfavorable result on April 30, 2019, that the time
limit for contacting an EEO Counselor began. Therefore, we find that Complainant’s contact, 43
days later, was timely.
Claims (2) – (4)
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).
Complainant contends that she was discriminated against when her employment offers were
withdrawn (claims (2) and (3)), and a structural interview was cancelled (claim (4)).

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Even in the framing of the claims, we find that the Agency has inappropriately addressed the merits
of the claims. In explaining that the retractions and cancellation were based upon the unfavorable
polygraph results, the Agency has inappropriately addressed the merits of the case, which is
irrelevant to the procedural determination as to whether or not Complainant has presented a
justiciable claim. See Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15,
1991).
As for the Agency’s assertion that the polygraph test is outside the Commission’s jurisdiction, we
find its reliance on prior Commission cases regarding security clearances is misguided. The
Commission does not have jurisdiction to review an agency's determination on the substance of a
security clearance decision. Policy Guidance on the Use of the National Security Exception
Contained in § 703(g) of Title VII of the Civil Rights Act of 1964, as Amended, EEOC Notice No.
N-915-041 (May 1, 1989) (Guidance); Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988).
However, the instant record reflects that the positions at issue did not require a security clearance.
Rather, the polygraph was simply part of a background investigation to ensure that candidates were
“reliable, trustworthy, and suitable for the job.” In a January 8, 2020 email from the CBP Applicant
Contact Center, the Human Resources professional expressly stated that, “[o]ur background
investigation does not result in a security clearance.” Rather, we find the instant circumstances to
be clearly distinguishable from instances where only once the results of a polygraph, or other
information gathered, are included in a security clearance investigative report are they beyond the
Commission’s jurisdiction. See Complainant v. Dep’t of Justice (FBI), EEOC Appeal No.
0120172253 (Nov. 6, 2018) (regarding claims that polygraph examiner misrepresented the
complainant’s responses, resulting in the denial of his clearance) citing Branigan v. Dep’t of
Defense, EEOC Appeal No. 01973495 (Jan. 9, 1997); see also, Schroeder v. Department of
Defense, EEOC Request No. 05930248 (April 14, 1994). Here, the record clearly establishes that
the polygraph examination and the vacancies were not part of a security clearance determination.
Therefore, the Agency’s dismissal was improper.
CONCLUSION
The Agency’s final decision is REVERSED. The formal 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.

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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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

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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), 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.

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“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. 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
May 5, 2020
Date