0120063249
02-21-2007
Howard T. Coblentz, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Howard T. Coblentz,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 01200632491
Agency No. F-04-5861
DECISION
Complainant timely initiated an appeal from the agency's April 6,
2006 final decision concerning his equal employment opportunity (EEO)
complaint claiming 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a).
During the period at issue, complainant was an applicant for an
Investigative Specialist position at the agency's Seattle Division in
Seattle, Washington. On April 6, 2004, complainant filed the instant
formal complaint. Therein, complainant claimed that he was a victim of
unlawful employment discrimination on the bases of race, sex, national
origin and age when, in March 2004, he was advised that he would not
be offered a second pre-employment polygraph examination and would not
be afforded further consideration for the position of Investigative
Specialist.
The record contains the following pertinent information relating to
the matter raised in complainant's formal complaint. By letter dated
September 2, 2003, complainant was offered a conditional appointment as an
Investigative Specialist pending the successful completion of a background
investigation, personnel security interview, pre-employment polygraph
examination and urinalysis drug test. In October 2003, complainant
went to the agency's Seattle Division for a security interview and
polygraph examination, which complainant failed. By letter dated June
7, 2004, complainant was notified that his appeal of the rescission of
his conditional offer of employment had been denied, and he would not be
granted a second polygraph examination and would no longer be considered
for employment.
At the conclusion of the investigation of the instant complaint,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge (AJ) or alternatively, to receive a final
decision by the agency. The record reflects that complainant received
this notice on June 1, 2005.
By letter dated July 15, 2005, and received by complainant on July 22,
2005, the agency informed complainant that his formal complaint was
being forward to the agency's Complaint Adjudication Officer for a
final decision, because complainant did not inform the agency whether
he was requesting a hearing before an AJ or a final agency decision.
Despite this notice, on or about March 6, 2006, complainant nevertheless
requested a hearing before an AJ.
In a motion to dismiss, filed on March 28, 2006, the agency requested
that the AJ dismiss complainant's hearing request on the grounds that it
was untimely filed. The agency argued that on June 1, 2005, complainant
received a copy of the investigative report and a Notice of Right to File.
The agency further argued that through this correspondence, complainant
was placed on notice that if he did not request a hearing before an AJ
within 30 days, the agency would instead issue a final agency decision.
The agency argued that after the 30-day deadline passed, it notified
complainant of its intent to issue a final agency decision. The agency
argued complainant's March 2006 request for a hearing was filed 248 days
after his receipt of notification of his right to make an election.
On April 6, 2006, before it received a decision on its motion to dismiss
complainant's hearing request, the agency proceeded to issue the instant
final decision finding no discrimination on the merits of the complaint.
Specifically, the agency found that the preponderance of the evidence
of record does not establish that complainant was discriminated against
on the bases of race, sex, national origin or age.
On April 17, 2006, the AJ issued a document identified as "Return of
Request for Hearing; Dismissal of Request for Hearing." Therein, the AJ
determined that complainant had no standing to request a hearing, noting
that his hearing request was made 248 days after receipt of notification
of the right to make an election. The AJ acknowledged that shortly
after the agency filed a motion to dismiss in March 2006, the agency
issued the instant final decision on April 6, 2006. The AJ determined
that because complainant's request for a hearing was untimely, he had
the right to file an appeal from the agency's final decision, but that
he did not have the right to request a hearing. This appeal followed.
As a threshold matter, the Commission determines that the AJ properly
determined that complainant made an untimely hearing request, and we will
therefore review the agency's final decision finding no discrimination.
The record reflects that a Special Agent (SA1) stated that, on October 20,
2003, he conducted a pre-employment polygraph examination of complainant
"which consisted of administering a series of questions related to
national security, drug usage and overall completeness and truthfulness
of his application." SA1 further stated "it is my opinion that recorded
responses to national security related questions are indicative of
deception." SA1 stated that following complainant's examination, he
"summarized the results on an FD 497 and FD 498, then forwarded them, with
the polygraph machine charts, reflecting the responses of [complainant],
to FBIHQ for a quality control review." SA1 stated that he was aware
that headquarters concurred with his determination that complainant's
responses to the national security questions were indicative of deception.
SA1 stated "I do not and did not make any recommendation or decisions
as to his being considered for a second polygraph examination."
Regarding complainant's assertions that he was not treated with respect
and that the polygraph machine was old and not operating properly,
SA1 stated that he treated complainant "fairly and in the same manner
as I have treated other applicants taking a pre-employment polygraph."
SA1 further stated that the polygraph machine he used for complainant's
examination "was operating properly and is proper for the administration
of polygraph examinations."
Regarding complainant's assertion that SA1 made disparaging comments about
his application photograph and asking him why he did not like Colombians,
SA1 stated "I do not recall making any disparaging comments as to the
application photograph of [complainant]." SA1 further stated that
he does not recall asking complainant why he did not like Colombians.
SA1 stated that he was aware that complainant was from Costa Rica "as
he had told me this." Furthermore, SA1 stated that he mentioned to
complainant during the course of the polygraph examination that "I had
been to Colombia, not that I was Colombian."
Regarding complainant's assertion that SA1 told him that he would be given
another polygraph examination if he failed because of the malfunctioning
equipment, SA1 denied making the comment. SA1 further stated "this is
not a decision I make."
The record also reflects that another Special Agent (SA2) stated that
he was the deciding official that complainant should not be granted a
second polygraph examination. Specifically, SA2 stated that "based on
comments made by [complainant] during the polygraph examination conducted
by [SA1] and my knowledge of FBI policy, it was my determination that a
second polygraph should not be afforded [complainant] as he had provided
information to his brother who was working for a foreign government."
Regarding complainant's assertion that the polygraph machine was old and
not operating properly, SA2 stated that the machine SA1 used to conduct
complainant's examination "have resulted in many of the applicants being
successfully hired."
The record reflects that the Supervisory Special Agent (SSA) stated that
because he works in the Employee Clearance Unit, he reviews requests
for second polygraph examinations by applications for agency employment
that did not successfully pass their first examination. SSA further
stated that it is the agency's policy and standard practice "in the
intelligence community to deny a second polygraph to those applicants that
did not pass the trustworthiness portion of the polygraph examination."
SSA stated that in complainant's case, he was aware that SA1 "indicated
that deception was indicated by [complainant] when tested for the
trustworthiness questions." SSA stated that "the Polygraph Unit at
FBIHQ did not note any errors by the Polygrapher or machine errors."
Furthermore, SSA stated that the Seattle Division did not recommend
complainant to have a second examination; and that complainant was issued
a standard letter from FBIHQ advising him that he would not be afforded
a second examination.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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
Department of Community 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
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not proven,
by a preponderance of the evidence, that the agency's articulated reasons
were a pretext for discrimination.
Accordingly, the agency's final decision finding of no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 21, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120063249
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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