Howard T. Coblentz, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionFeb 21, 2007
0120063249 (E.E.O.C. Feb. 21, 2007)

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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0120063249

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