•.. • ·~ '~ ~ I' 11_ c ( ' )'" • J' U.S~ D~partment of Justice Complaint of Discrimination (see instructions on reverse) PRIVACY ACT STATEMENT: I. AUTHORITY-The authority to collect this information is derived from 42 U.S.C. Section 2000e-16; 29 CFRSections 1614.106 and 1614.108. 2. PURPOSE AND USE-This information will be used to document the issues and allegations of a complaint of discrimination basedii~race, color, sex (including sexual harassment), religion, national origin, age, disabili • ~physical or mental), sexual orientation or reprisal. .~ ·~ P .. n-...r, .V The signed statement will serve as the record necessary to indicate an investigation will become part of the complaint file during the investigation; hearing, if any; adjudication; and appeal, if one, to the Equal Employment Commission. 3. EFFECTS OF NON-DISCLOSURE-Submission of this information, is MANDATORY. Failure to furnish this information will result in the complaint being returned without action. = 2. Your Telephone Number (including area code) lr ~~~~----~-~l~~------~11 1>-J;,,...,J...,r nr l n " t e I"'in, c;:t<>ta .,.,rl I. 7inrnrlP e L f /.? Fi3-:r. oJti""'o {.:(_, , Lor4. Bt..(tl("i\I}J"..e.. \/\134.\-tl;f\br-<. 1 1"\0 "2-11.. lf 4 (7'1..(.()() twes-rt . r-t. ~. Street Address of Office Month Day Year L-008 DATE OF FIRST CONTACT WITH EEOOFFICE: 0~ t 1 c.f 1 vo~ I 0. Date of This Complaint: · Month Day Year 0 1 l1 tJ jz oo P 4. Current Work Address J u"' e.n p I ~ y_~;A. A. Name of Agency Where You Work Ur-eM P l o V--t { b6 B. Street Address of Your Agency · lJLJA .f.#l City, ~tat'e and Zip Code ,.· 'G. City, State and Zip Code 5. Date on Which Most Recent Alleged Discrimination Took Place ::..&---------------..J-1-- 0 3. Which Department of Justice Office Do You Believe \ Dij,Srirninated Against You? ( / ~ 1 t- r,U_ ro. ltv r_e.a. 14 dt '1 t<. i ci_n A. Name of Office Which You Believe Discriminated 'Against You. r ' ITi1 Title and Grade of Your Job (") !VIA ifRace or Color Afr,(li" (Give Race or Color) Af'I\.Q. rl C41) o Religion (Give Religion) - - - - - - - - - - - - 0 Sex (Give Sex) o Male o Female o Sexual Harassment o Age (Give Age) -:-:------:---.,....--------0 National Origin (Give National Origin) - , - - - - - - - - 0 Disability o Physical o Mental DATE OF RECEIPT OF NOTICE OF FINAL INTEVIEW WITH EEO COUNSELOR 01 - _CD 6. Check Below Why You Believe You Were Discriminated Against? )> < ~ Sexufll71>rientation .. ..:5J 0 ' Reprisal o Parental Status o Class Complaint o IHave·Not Contacted an · EEO Counselor b6 ??64 {Lain ?)lm'vb been 1?:ch far 15.0th {my imv? you.) 3) WW. ?powjrag?r?u m? a3" Hack mam 35mm? mite/H 00$?ngth m" 4 Girl/t] a?wl?nj} ?nd/any lair? 4Q, U05 ?'nA (uercofmfn Ad?Hanr 1 ?an +0 Le a. {716,130 ?Mk 14% LWM +0 MLL cm {/1ch Aruj whisky. ffo/mrlw Po Hm Mu a?i?wl?v? his accusaj'lo?nj?uqrew {?5,00th UiHm adv-Marni (ALMFIL JAM/elf no?wivtfj441lxajc I would?! 1[ . mm, by?) a. helm}, my leCQromnd 016.5?! WM AIM JP skeoi me ask?. 8?me dawn +Hwha?prcmiic?d IIC Mina ?04 Pdmhal Ma? 1 Wk: . He?d mY?t/T J, would M. inn +1)de I and :1..me I KW wail ?mire g?Ir?ea?f Jo; {Wm com 'uer 55$ . a (A, W?l? called a, [wag/j 7 (856?th 5r lbw-[chow me ivy swim LAC JFGUWA. 0r my?JW?? 4/ MM DEW Mei: not), up wit wrhfa] Jami lofcauS? -L if? 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(Riiiiiiii W USPS.ccm Hame >) ~otification Options Track & Confirm by email Get current event information or updates for your item sent to you or others by email. ( Go>) I? -------------------------------------------------------------------------------------------------Gov't ~ervjce$ Copyright© 1999-2007 USPS. All Rights Reserved. prjyacy Policy No FEAR Act EEO Data Terms nfl)se National & premjer Accounts , FOIA http://trkcnfrml.smi.usps.corn!PTSintemetWeb/InterLabelDetail.do 9/25/2008 I • ( '~ t • I '• Complnint of Discrimination ts.:t instn.t·fitJns on tflfflf) ATEMF.NT· I AUTIIORITY·TheaulhanlyluwllIK>n "dem·cd from ~2 S.t'. Sccuon lllOilc·lb; 29 CfR Sections 1614.10!1 and lbi4.1U~ l I'IJRI'OS£: ANU IJSIO·l'h•• inf.wmalion will be U.Cd k• li•>.:umU<• •nd :allt'~;timl!'l o( ;a t•lmrlaint n( discriminatHm baseJ un nee. colnr. U\ lin~.·ruJintc. ~e,u;al ho~f.a,.imcut) rchgum. 1wliuu~l onau1. or,~e. "•~billl) (ph)\ic~l ur"mcJibl), ~~u.&l m~tLIUun I'IUVM'Y Al·r Tht sign~d sutrment will Stf\'e as lht r~curd necessary UluuJ"alt an 111H!!UI(.III1111 ._..,11 become pin nlthe cnmplainl file dunnx llle mvcsllgallnll, heannF, II any, •dJud•~•m•n, ~nd · •ppnl, 11 one, .., the ~qu.l Hmpluyn~rnl <'omnusSiun. 1 F.FFEI'TS OF t-:ON·f'liSC'I OSilRf:-Suhmimon ufllus mfnnnounn" M.... Sili\lfmr J ;adurC' lu fulll 1\h tim' 111f~lnll~h011 \loill ft:iUIIIII the cumplamt hcmg tclunac:LI ~llh•lUI2.t.liiiU nr 1Clr!'i31. 2. Your Tclcohune Number ftndudiiiJllll'<'•twd.-J I Complamam's Full Nam I_ ~'"""' A ,!,lr.•oe 11 n ) r\1.,..;,-1, ... 'nr nnY l\lt1mhPr f Hom I Wor.'------------....,.--..J I I 3. Whtch Department oiJust!PC!Uillcc 00 You ucuevc l'>~n~~cd Ag;¥nst ),:ou'.' ~ ' f - - _.1.;~ r :.u G ra.t -A/()/) •· Bllfl?AU rJr ..J-1\-ve)l 1-jtt b6 w/A U Strccr Jlddrcss of Your Agency Aliff ,...,, t:.'::) _ -..., C3 :... C ('uy. Sr:uc and Zip Code W,'rtJ.>or /'1;//~ I1JJ S. Date on Whach Most Recent Alleged Dis,nminalion TllOk Place Month Year 6? ~/o - -~cor C'o.lur (G'il•t• Ran• or C'lllor) .•./3!~k____,__,·- . o Rchgwn IGt~'f Rl'itgm11) ~x ((i"d't•xJ D ~c ....oFC:~lc-- · ............ . ' I •'" Sexual <:lfi'cnrarton:::-; ::J Repmal' :,, a Nat1onal On gin f(;;;.~:ttJ~(i,,-;,TcJrigit~ ~~ ~ -~ ·-~ ~ ...· ." o l'hystcal • (! ' ..........l ....... -· Sexualllara.~smenr Age ((iit•c• .~KI'! a Dasah1lny . ~~: .J () -··· w a ,~ ~ r:.-: ·.:) 'tj o Mental . ~ ·.:· ·~ : n Parenral Sraru~ rJ Class Cllmpl:ulll DATE OF RECEIPT OF NOTICE Or I'll\ AI. INTEVIE\V WITII EEO COUNSELOR d-OJo· oR do ro llarc of This Complaint: Da\' Year \h•nlh 0f lj 9{}JO 1'1,'1(~1 11•.•1·~··1-\ ~1:\K. ~I>~ I ' . .. • READ CAREFULLY • • This form should bt: used only if you, as an applicant for Federal EmpJ,>yment or as a Federal Employee, think you have been discrimi· natcd against because of race, color, sex (including sexual harassment), reLgion, national origin, age, disability (physical or mt'nlal ), se:>.ual orientation, parental status or reprisal by a FEDERAL agency, and have presented the matter for informal resolution to an Equal Employment Opportunity (EEO) Counselor within 45 calendar days of the date the inc1dent occurred or, if a personnel action, within 45 calendar days of its effective date. · • Your complaint must be filed within 15 calendar days of the date o!" your receipt of the Notice of Final Interview with the EEO . Counselor. If the matter has not been resolved to your satisfaction within :10 calendar days of you contacted the EEO Office an~ the fmal counseling mten11ew has not been completed within that ume, you·have the nght to file a complamt at any time thereafter up to 15 calendar days after your recc1pt of the Nottce of Fmal Interview. These til'!le limih. will only he extended under limited circumstances .. • The EEb Counselor or the EEO Officer will assist you in preparing your complaint, upon request. • Yuur written comrlaint shuuld be tiled by you with the EEO Ofliccr f·>r the Bureau where the alleged discrimination occurred • You may have a rep.n:s~:ntutillc: at all stages ufrl1e processing of your complaint. • 'You will h•m~ an opportunity to talk with an impartial investiga!or and present all the facts which you helieve support yourcomplamt of d1scrinunation. • After the mvesugation of your cnmplamt.has been completed, you will be fumished a copy of the in\'estij!aii\'L' file. You will then be gi\·cn an opportunity tu request a final agency decision by the Department of Justice's ( 'omplaint Adjudication ()flicer (CAO) or a hearing before the Equal Employment Opportunity Corrunission (EEOC), which will be conducted by an Administrative iudge of the EEOC. At the heanng, which will be held at a qmvenient time and place, you may prt·sent witnesses and other evidence in your be-half. e If your complaint is based upon sexual orientation or parental status, yuur investigative file will be re:'.'iewed by the Department of Justice's CAO and a final decision will be rendered with no entitlement for further administrative rev1cw. • If a hearing ts hc:ld on your complain!. thtr<:AO will take final action on your complaint by issu1ng a tina! order. The tina! order will notify yon whelltcr ur not the agency will fully implement the Administrathe Judge's decision and it will explain.yuur appeal rights. If you t'le~:t tu have anmuuediate final agency decision without having a hearing, the CAO will take final action on yout ~:umplaint by issumg a fimtl agency dec1S1on whtch consists of findings on the merits of each issue ;n the complamt. The final agency dec1ston will also mcltide an l'' <>nfl 7ir< I"'Afl,. \ Work I J 3. Which Departm~n~'"ol' Justice Office Do You Believe Discriminated f\g~in~t You? f~I.. c ~m~ 1-'oc::t ltttr.e Rox Nnmher · b6 4. Current Work Address II ~6''\ ~-ra.ph L) (t;-t. I I I A. Narile of Agency Where You Work A. Name of Office Which You Believe Discriminated Against You. . J B. Street Address of Your Agency : B. Street Address of Qffice City, State and Zip Code C. City, State and fiP; Code Title and Grade of Your Job - ". : 5. Date on Which Mdst Recent 6. Check Below Why You Believe You Were Discriminated Against? Alloged D'torimi""'l" Took Pl11oo 4 ~L ;l.Dib Month Day Year : Race or Color (Give Race or Color) Religion {Give Religion) 0 Sex {Give Sex) o Male o Female o Sexual Harassment o Age (Give Age) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ o o Sexual Orientation 0 0 ~Repr.~al :::!] ,. ....! Q } Parent~tatps~ o National Origin (Give National Origin) - - - - - - - - o Disability o Physical o Mental _,, J . ,j '-' ~ ;· : .) rrY Cl~~ Compl!i\nt n, . .. ,, ·~ 7. Explain how you were discriminated against (I'reated differently from other employees or applicants) Because of YGur R@e, ' :.... Color, Religion, S~x, .Age, Handicap, Reprisal, or National Origin (You may continue your answer on anther sheet i/papf?(j{you 'fz"i&J more space)"f\)\eD..~C ~e_e_, CL \-\o..chcJ . ,; -~~ 0 8. What Corrective Action Do You Want Taken on Your Complaint? 9. A) I Have Discuss~a My Complain With an EEO Official: ! DATE OF FIRST CONTACT WITH EEO OFFICE: ' B. Name of Counselor: DATE OF RECEIPT OF NOTICE,.Jbr-'I""TT"=~----r------------......1 o I Have Not INTEVIEW WITH EEO COUNSELOR Contacted an 'Ue:me d F Icd: &f3) 10 {fo:s\me<-y)~ !L [;/7/1 /) tf()( EEOCo"~'W' 1 t June 3, 2010 To whom it may concern, I This letter is in further support of myJ application for reconsideration of my request for are- ol a h test. 1-------....1 I have een examined and investigated for secunty an other clearances, an ave passe a tests .and been approved for all clearances. . In the current matter, I have already passed one polygraph test administered hy0 0and all other investigations have been acceptable, resulting in my receiving a Top Secret clearance. After the polygraph test, which is the subject of this appeal, the Agency declined to continue my employment based upon the polygrapher's interpretation of my response to a question regarding whether I had ever been associated with a criminal. ~---~-r-~-~~~~-~~-~~~----~~--~--~~~ / .' 2 Thank you for your kind consideration of the above. Respectfully yours, Appeal letter 06 03 10 April27, 2010 Polygraph Appeal Board 935 Pennsylvania Ave: Washington, D.C. 20935 Attn: Pugrv21 0 Fax: (202) 324·2754 Re: Appeal the Polygraph Test on Wednesday April21, 2010@ 1:00pm To Whom It May Concern: Please accept this letter as an official appeal to the polygraph test administered fod lon Wednesday April21, 2010. This test, administered at approximately 12:50 p.m. at The Federal Bureau oflnvestigation (FBI) Washington Field Office (WFO , was the second event of the da , which was re uired for ~mployment consideration with the FBI. .__----~----------------~----------------~--_.... rior to this polygraph test, I have successfully completed a number of separate background investigations and polygraph tests, which, I feel, is testament that I am suitable for and trustworthy of employment with the Federal Bureau of Investigation. I believe tl;tat I have a credible basis to appeal the results of the polygraph test mentioned above due to stresses and fatigue I experienced during the day of the polygraph test·. On Wednesday April21 2010 I completed an interview lfor the Federal Bureau of Investigation.! I with thel Consequently, I encountered a barrage of questions that I was not prepared to answer and was taken completely out of.the focus and mind set for the day. As I am sure you realize, interviews can be stressful and can become more stressful when interviewing with an agency that you have preferred as an employer for four (4) to five (5) years. Still, interviews can become most stressful when an interviewee is not given accurate, necessary information needed to prepare for an interview. After completing the rigorous morning interview, I had to sit and wait for a polygraph administrator to become available. Fortunately, I was already at the Washington Field Office fod !interview and was early for my polygraph test. However, I did not have time to leave the building for "fresh air" or to attain any lunch, to compose and refresh myself, before the polygraph test. I was assigned the first available polygraph test administrator, which added yet another dimension of stress to the day. ~~~--~--~~~------~----~~~~~~--~--~--~~~~--~~~~Is& with the polygraph administrator and answered his inquiries, honestly, as he asked multiple questions. The string of questions included "When were you born" "Where were you born" "Have you ever taken a polygraph before" etc. Page 1 of3 '. ' .~. After all of the preliminary input of data was complete, we began the polygraph test. At the conclusion of the polygraph te&t, I felt that the test had gone well, mainly because I answered all of the questions honestly and to the best of my ability. The administrator informed me that the test was complete and that he had to take the ''jump drive" with my results to his manager and he would be right back. During his absence, I remained strapped to the chair, which was approximately ten (10) to fifteen (15) minutes, while the polygraph administrator conversed with his manager. Upon return, the polygraph administrator stated that we needed to redo the suitability questions and that he was going to substitute some questions. He asked me ifl wanted to change any of my answers to the questions involved with the primary polygraph test. I told him "no" and he proceeded to administer the second polygraph test. After this test however, he stated that my results "spiked" at a sp~cific question and asked ifl could guess which question. I be an to tell him which uestion I felt could have possibly "spiked". The question I felt that could have spiked was, which I felt was a possibility because I have lied to my parents at one point or another about somet mg. e s oo IS head and stated that my results spiked during the !This completely confused me because I know that I have question oft not. He began to interrogate me as if I was a criminal, which I am sure is procedure, but I was being truthful. He began to ask me·what I was thinking when he asked me that particular question and I told him I thought, "This is the one uestion tha no matter wha I don't have to WO!!Y about, even though I could not fully remember the entire list ~~;:;:-:~~~~-:-:-~:----r-~-.----....L.Th.:.=.e:::::n::.;h:::;e::..;in::;f_o_rmed me that people sometimes spike at this 9uestion when someone they are close to d he instructed me to think hard about what could have caused the "spike." At the time I to t ere was nothing that I could recall that would cause that, besides, I would think everyone would have some sort of reaction about crimes as horrific those. As he insisted as Page2 of3 .. b6 I The special agent who was assigned to administer my polygraph stated that I was being untruthful abou~ !however, I know that I have not committed d lor been involved in ~r;.;;;.;;...;;;.;;..;;..;.;.,;;j"--""u"'"'hr-e-re___. could be a number of reasons why my vitals spiked during the question· abouti II cannot give a definite reason why, however I am sure this letter shows various possibilities, aside from the fact that polygraph tests are not 100% accurate. However take into consideration something else your polygraph test also' provided, which is a question that I answered multiple times that day, which is I had no intention to hide or lie about anything to·the Federal Bureau of Investigation or the administrator of the polygraph test. If you agree to accept this letter as an appeal to the results of my polygraph· test and I am sure that you will gain a qualified and able employee, as well as, someone who has worked tirelessly to become a part of the agency that ensure the freedoms and liberties of the people of the United State of America, The Federal Bureau of Investigation. Please feel free to contact me at the above states address, phone number, and I or e-mail if you have any questions or concerns. Thank you for your time and consideration in this matter. · Sincerely, .I._________. Page3 of3 b7E July 12, 2010 To whom it may concern: pfthe Federal Bureau of b6 During the month of November 2010, I began the process ofbecomingJ Investigation. As a condition of employment, I had to, successfully, pass a background investigation and polygraph test before my employment could officially began. At this time, I haye passed the background test, yet I have been impeded from successfully completing the polygraph 'examination because of an unfortunate coincidence. This coincidence can best be described as an increasing number of applicants with middle and lower economic backgrounds failing the polygraph portion of the security examination 1 through a singular question asked during the examination.! lis the question that seemingly gives life to this coincidence and life to suspicion that this question . does not represent a "fair" polygraph question. It is very suspicious that the individuals cited within this b 7 E group can fail the polygraph without any documented criminal history but because of one individual's perception of the candidate or the candidates' background. If your theory about candidates' lis correct, it seems it is safe to say than there has been a undocumented involve.ment i~ breakdown in the law e¢'orcement system of ~e Un!ted Stat~s of ~erica. I do not believe this breakdown exists just as I am sure that the coincidence mentioned in this letter should not exist. I The problem of applicants failing out of backgro~nd based on the single question ofl has been acknowledge by the Federal Bureau of Investigation's Human Resources Department in May 2010. I am a victim of this coincidence and humbly ask that I be granted the opportunity to prove my innocence and suitability to be an agent in the Federal Bureau of Investigation in, a country where an individual is innocent until proven guilty, the United States of America. Thank you for your time. I I I b7E . ] ThankYOll. c b6 .. 9 (") ::.a 'c- ~--n fT1 ., 0 rn fT1 J c:> r- -.r:: -~ :;p.. -o ., .,J> r;Y ;:3 ·- 0 [,. !"""-) -n " ,.·:) ... ...... ....... ~i ,w r~"C~ Cl D , U.S. Department of Justice Federal Bureau of Investigation washington~ D.C. 20535 05/l8/20l0 Dear~~----------~ Your letter regarding the results of your pre-employment polygraph examination on 04/21/2010 has been referred to me for a response. Your. request for an additional pre-employment po1ygraph examination has not been authorized.· Although the FBI does offer a polygraph retest under certain oiroumstanoes,.you do not meet the criteria required and will not be afforded further consideration for employment: our hiring policies ,provide no further avenues for you to pursue to·gain employment with th~ FBI. Your interest in employment wit~ the FBI has been a~preoiated~ and it is unfortunate that we are unable to offer you a.more favorable decision. Sincerely yours, Paul S. White section Chief Security Division Processing field office: WF I ,- ----. , _ .. - ·- I b6 1 GR \ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON FIELD OFFICE 13:1 M Street, N.E. Washington, D.C. 20507 Complainant, v. Eric Holder, Attorney General, U.S. Department of Justtce, Agency. ) ) ) ) ) ) ) } ) ) _________________________) EEOC No . 1...._ _ _ _ __ _ b6 Agency No~'------- Date: February 9, 2012 · ORDER OF DISMISSAL Notice is hereby given that the above captioned case is DISMISSED from the hearings process based on the Class Agent's withdrawal of her request for a hearing. Accordingly, the above-captioned com,plaint is sent back to the Agency for the appropriate processing of her individual complaint. This office is also enclosing a copy of the hearing record and the Report of Investigation for the Agency. IT IS SO ORDERED. Frances . del Toro Admin'strative Judge - t' ) ('>), A old r J r '\ . , • r t CERTIFICATE OF SERVICE For timeliness ptirposes, it shall be presumed that the parties received the foregoing documents within five (5) ·calendar days after the date they· w~re sent via first class mail. I certify that on February 9, 2012, the foregoing documents were sent via first class mail and via facsimile to the following: · ··- I I Federal Bureau ofinvestigation · Office of the General Counsel, Employment Law Unit 935 Pennsylvania Avenue, NW RoomPA-400 Washington, DC 20535-0001 I I Equal Employment Opportunity Officer FBI Washington, DC 20535-0001 2 HEARING RECORD Page 1 of5 DELTORO- RE~._==---.....~.,;:;~:.::;lass Complaint, EEOC C~se Numbe~ IFRANCES jA.gency Case Number FBIJ I ._______. From: To: kooc)(FBn"l I· · r----------------~~~~~--------------------~f~RAN~C~E~S~DELTORO Date: Subject: .___ _ _ _ __.!Agency Case Judge del Toro, I The Agency concurs withl request and respectfully requests thad lclass claims be dismissed and that the case be processed arid investigated by the Agency as an individual complaint. The parties' responses to your January 20, 2012 request for information are due next Friday, February 17. Please let us know if you need any additional information from us at this time or if the parties' joint request to dismiss the class claims will be granted and the requests for information withdrawn. Thank you,.gm9 please do not hesitate to contact me ~urther regarding this matter. D b6 Assistant General Counsel Office of the General Counsel I Federal Byreay of !nyestjrion THIS EMAIL MAY BE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE AND MAY NOT BE DISSEMINATED WITHOUT PRIOR OGC APPROVAL. Documents which accompany this electronic message may contain metadata. It is my express intention to only deliver the documents in plain visible form. Access to any metadata is not authorized. .___ _ _ ____.!Agency Case Number FBI- Good evening Your Honor, lan4 have decided to pursue this case as my own I have discuss my case in great detail withl individual case. Please accept this email as a request to withdraw my class claims and proceed as an individual complaint. I apologize for any inconvenience. file://C:\Documents and Settings\FDELTOR\Local Settings\Temo\XPgrowise\4F32BF19G... 2/9/2012 b6 Page 2 of5 If you have any questions please feel free to contact me with the information provided below. Thank you for your time and attention in this matter. Respectfully Submitted, On Thu, Feb 2, 2012 at 2:16PM, FRANCES DELTORO~~---:--------___.wrote: The requests for an extension are granted. Responses will now be due on February 17, 2012. No further extensions shall be granted. Frances del Toro Administrative Judge U.S. Equal Employment Opportunity Commission 131 M Street, NE Washington, D.C. 20507 Office N ..,:.o~l_ _ _ ____,___. Fax NolL."""''="""""'_ _ ___. >>>j Tow~h~o-m~It~m-a_y_c_o_n_c-ern_: b6 ~2/02/12 12:43 PM>>> _ _ _ _ _ _ _ _~ I would also iike to request a two week extension. I received the request for information in the mail yesterday. I spoke to I today and I plan to work with her to , hopefully·, resolve this issue. I If there are any questions please feel free to contact me with the itiformation provided below. b6 Sent from my iPhone ~O;.;;;n:..=.F..;;;.;eb;;...;1:.z.,.;;;.;20;..;;.1~2,..;;;;at.;;..;6;;.;.;;:3;..;;.0..;;.P.:;;.;.;M;;,,LI______.KOGC)(FBI)" jwrote: I ~.1------1 > On January 20, 2012, Judge del Toro issued an order requesting additional information from you and the FBI. You should have received a copy of the order by mail. I've attached a copy of the order for your review. > >As you'll see, the order directs both parties to provide information by February 6, next Monday. In my below email, I've requested a two-week extension to submit the information requested from the FBI. file://C:\Documents and Rettimrs\FDELTOR\Local Settimrs\Temo\XPe:rowise\4F32BF19G... 2/9/2012 Page 3 of5 > >I left a voicemail on your home number earlier today. Please feel free to call me to discuss the case and next steps in more detail. My phone number isl > I . >Thank you, b > > > ~-.-------, b6 > Assistant General Counsel > Office of the General Counsel >Federal Bureau oflnvestigation > > > >·~--------------~ > >THIS EMAIL MAY BE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE AND MAY NOT BE DISSEMINATED WITHOUT PRIOR OGC APPROVAL. Documents which accompany this electronic message may contain metadata. It is my express intention to only deliver the documents in plain visible form. Access to any metadata is not authorized. > > To whom it may concern, > . > Where I am appreciative that my case is still active in the system, I'm disappointed that I have not been included on the status of my case since receiving documentation that my submission was received. I would like a full briefing on my case and the way ahead before anything is submitted on my behalf. > > I thank you in advance for your time and attention in this matter and look forward to hearing from your office. > b6 ~Sincerely, file://C:\Documents and Settim!s\FDELTOR\Local Settings\Temn\XPgrnwise\4Fi2RF19G. ?./9/?.()1 ?. Page 4 of5 > Sent from my iPhone > > On Feb I 2012 at2-06 Pl}f, •I ~ loGC)(FBI)" Jwro~t~e:~------~ > >Judge del Toro, > >I have copied Complainan~ on this email chain. > ~------~ I >Thank you, b b6 > > ~.--------, > Assistant General Counsel > Office of the General Counsel >Federal Bureau oflnvestigation ::: ::: ::: > >THIS EMAIL MAY BE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE AND MAY NOT BE DISSEMINATED WITHOUT PRIOR OGC APPROVAL. Documents which accompany this electronic message may contain metadata.· It is my express intention to only deliver the documents in plain visible form. Access to any metadata is not authorized. > > > Do you have Complainant's e-mail so she can be copied on my response? If not, then you need to file a> U.S. Equal Employment Opportunity Commission >131M Street, N.E. >Washington, D.C. 20507 >Office No. (202) 419-0726 >Fax No. (202) 419-0701 > >>>>'I kOGC)(FBI)"I 1211112 12:38 PM>>> . . >Judge del Toro, > >I left you a voicemail yesterday, but I wanted to follow up with an email in case you are traveling and have limited access to voicemail. > b6 ') /Q/")(11 ") Page 5 of5 >I am the FBI's representative in the EEO Class Complaint oft I Holder, EEOC Case Numbed !Agency Case Number L.F=B......,..Hr--........_.;...;..;.....;..,IOn January 20, 2012, you sent a request for additional information regarding complainant's class complaint and the Agency's . position. You have asked for the information to be provided by February 6. > > Due to delays with mail processing, I did not receive your request until January 30, approximately one week before the Agency's position is due. I would like to request a brief two-week extension until February 20, 2012 to provide the Agency's response. The Agency intends to file a submission opposing class certification, and the Agency also intends to include a motion to dismiss. Given the delay in receipt of your order, as well as previously set deadlines in other matters, the Agency requires an additional two weeks to submit a full response. lv. > > Please let me know whether you would be willing to grant this brief extension. > > Thank you very much for your consideration, and please do not hesitate if you wish to further discuss this matter, to contact me > >D > > > r - - - - - -..... >L..I___,..-___,...___. > Assistant General Counsel > Office of the General Counsel .~Federal Bureau oflnvestirtion > > >THIS EMAIL MAY BE PROTECTED BY THE ATTORNEY CLIENt PRiVILEGE AND MAY NOT BE DISSEMINATED WITHOUT PRIOR OGC APPROVAL. Documents which accompany this electronic message may contain metadata. It is my express intention to only deliver the documents in plain visible form. Access to any metadata is not. authorized. > > > ~r----.....IRequest for Information. pdf> ?/Q/?01? U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION . WASHINGTON FIELD OFFICE 131M Street, N.E. Washington, D.C.20507 January 20, 2012 Federal Bureau of Investigation Office of the General Counsel Employment Law Unit · 935 Pennsylvania Avenue, NW RoomPA-400 Washington, DC 20535-0001 RE: b6 EEO Class Complaint~o=fl..__ _ _ _ _ _ _.....J EEOC Case Number: L.l.r--________.. . , Agency Case Numberl. . ._ _ _ _ _ ___. Dear Parties: The above-referenced class complaint of discrimination is currently before the Equal Employment Opportunity Commission (EEOC) pending a decision to recommend to the Agency that it either accept or dismiss the class complaint. Under 29 C.F.R. §1614 (2011), a class complaint may be dismissed for any of the reasons listed in 29 C.F .R. §1614.1 07 or because it does not meet the prerequisites of a class complaint undet: 29 C.F.R. §1614.204(a)(2). At this time the EEOC lacks sufficient information to determine whether the Agency should accept or dismiss the class complaint. The following information is therefore requested, pursuant to 29 C.F.R. § 1614.204(d). · The class agent is directed to provide the following information: I. Specifically and clearly identify each of the employment actions that are the subject of your complaint. With regard to each of the employment actions that are the subject of your complaint (e.g., performance evaluations, fellowships and training, freedom of information and privacy act, awards, promotions/hiring, time-in-grade prior to promoti~ns [either career or competitive], opportunities to act in supervisory positions, reassignments, grievance/EEO program, and reprisal), specify the questions of law or fact that are common to your individual claims an,d the claims of the class that you seek to represent, i.e., how is your claim typical of the claims of employees/former employees in other divisions of the Agency and in other classifications and grade levels? Regarding each of the personnel actions challenged, explain the specific practice you are challenging and specify whether there is a centralized administration and/or decision-making system within and among the Agency's divisions that governs these employment actions. 2. How many individuals do you contend have been adversely affected by each of the employment policies or practices that you allege to be discriminatory? How did you make this determination? Present any available statistical evidence related to this determination. 3. Who ary the specific individuals you contend have been adversely affected by each of the erp.ployment policies or practices that you allege to be discriminatory and what are their job classifications? How have each of these individuals been affected? Where are these individuals employed, including geographically and by organizational and departmental unit? 4. Provide an exhaustive list of all of the divisions within the Agency in which individuals included within your class complaint are or were employed, and specify the number of putative class members in each division. Explain whether these divisions share a centralized admimstration and/or supervision system. Provide an organizational chart that shows the respective position of each of these divisions within the Agency and specify the number of employees of the same protected class(es) as you within each division. 5. With regard to your employing organization, provide an organizational chart and specify the number of employees of the same protected class(es) as you within this organization and within each of the subunits in this organization. 6. What is the nature of the Agency's management organization as it relates to the degree of centralization and uniformity of the personnel practices at issue in the complaint? 7. If your complaint includes allegations involving performance evaluations, does your class complaint encompass only those employees of the same protected class(es) as you who are evaluated pursuant to a general Agency appraisal system, or does it also include employees evaluated pursuant to other performance evaluation systems? If it includes other evaluation systems, identify these systems and provide any statistical information or other information that supports your claim of discrimination arising from these systems. Additionally, explain how you, an employee evaluated pursuant to one system, can represent employees evaluated pursuant to another system. Provide any information that shows that the relevant appraisal system mandates a uniform employment practice, rather than merely setting out procedures or steps ~hrough which employees are evaluated. 8. What is the time span covered by your allegations? 9. Typically, a class must be represented by an attorney experienced in class action litigation in the relevant field. Provide· a statement from your attorney outlining his/her experience in Title VII litigation, with specific reference to .class action litigation. Specify how you intend to finance the cost of the class action proceeding, including paying for attorneys fees and other costs necessarily incurred in acting as the agent in a class action proceeding. If you are not represented by an attorney, what efforts have you made to retain an attorney to represent you and the putative class in this matter? Do you intend to retain an attorney in the future? 10. Provide any other information relevant to a determination of whether your complaint meets the prerequisites of a class-complaint under 29 C.P.R. §1614.204(a)(2). The Agency representative shall provide the following information: 1. A statement of the Agency's position on whether the complaint meets the requirements of numerosity, commonality, typicality, and adequacy of representation, as required by 29 C.F.R. §1614.204(a)(2) and whether the complaint should be dismissed for any other reason under 29 C.F.R. §1614. 2. Any other information and/or comments that you may have with respect to any other items addressed to Complainant above. Lastly, you must respond by no later than February 6, 2012. The response must be received by this office by said date. If you do not respond in a timely fashion, the EEOC will apply appropriate sanctions, including the possibility of drawing and adverse inference or recommending that the Agency dismiss the complaint pursuantto 29 C.F.R. §1614.204(d). SO ORDERED. Complaint of Dj' rimination U.S. Department of Justice (See instructions on revers~;./ PRIVACY ACT STATEMENT: I. AUTIIORITY- The authority to collect this infonnntion is derived from 42 U.S.C. Section 2000e-16; 29 CFR Sections 1614.106 and 1614.108. 2. PURPOSE AND USE-This information will be used to document the issues and allegations of a complaint of discrimination based on race, color. sex (including sCl(llll! harassment). religion, national origin, age, disability (physical or mental), sexual orientation or reprisal. The signed statement will serve as the record ncccssruy to initiate an investigation and will become part of the complaint file during the investigation; heering, if any; adjudication; and appeal, If one, to tile Equal Employment Opportun11y Commission. 3. EFFECTS OF NON-DISCLOSURE-Submission of this information is MANDATORY. Failure to furnish this information will result in the complaint being returned without action. 1. 2. Your ~il <.J'1 ;:o ~·.-,. ! t] 0 ~prisal:;::.::: 0 Male 0 Female 0 Sexual Harassment C'J 0 Age (Give a g e ) - - - - - - - - - - - - - - - - 0 National Origin (Give National O r i g i n ) - - - - - - - - - - XI Disability 0 Physical :xJ Mental 0 ~ ("') r~tal~tus r.-1 - ill 0 .,. '1'> 0 ~lass C~~_Piaint -.--, 7. Explain How You Believe You Were Discriminated A~ainst (treated differently.from other employees or applicants) Because ofYour li&e, Col~ ~ex (inrlt ing sexual harassment), Religion, National Origin, Age, Disability (physical or mental), Sexual Orientation, Parental Status, or Reprisal. Do not inoliUie specific-issues or incidents that you have not discussed with your EEO Counselor. ou m continue our answer on another sheet o er · 'OU need more spacfr.j ..0 . On October 24, as applicant for failed Polygraph and told no further processing would be possible. Have mental disabilities/medications that 9ause me to have greater tlian average tendency to fail Polygraph. FBI fully informed of medical hist~ry prior to Polygraph. In this case, use of ability to "pass" Polygraph as requirement for full adjudication constitutes discrimination. see attached 8. What Corrective Action Do You Want Taken on Your Complaint? 1) Polygraph results classified as ''NO OPINION" 2) OPM psychiatric/psychological adjudication to determine suitability, loyalty 3) Proceed with full Background Check/Adjudication 4) Position to remain available as offered until completion of 3) 9. A) i have discussed my complaint with an Equill Employment Opportunity Counselor and/or other EEO Official. DATE OF FIRST CONTACT WITH EEOOFFlCE: 11 02 05 10. Date of This Complaint: Month 11 Day 15 DATE OF RECEIPT OF NOTICE OF FINAL INTERVIEW WlTH EEO COUNSELOR: 11 . 9 05 B) Nan1e of Counselor 0 IHaveNot Contacted an EEO Counselor b6 Year 05 FORM DOJ-20 lA MAR.2001 b6 NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPl.AINT SUBJECT: NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT FROM: DATE: 1I/9/2005 I TO: b6 I (Name of Person Counseled) This is to inform you that because the matter you brought to my attention has not been resolved to your satisfaction, you are now entitled to file a discrimination complaint based on race, colors religion, sex, national origin, physical or mental handicap, age, sexual orientation and/or reprisal. If you file a complaint, it must be in writing, signed, and .tiled, in person or by mail within 15 calendar days after receipt of this notice. You will be provided a form (DOJ 201-A) for filing your complaint. If filed by mail, it must be done through the U.S. Post Office Department since the postmark is used to determine the date filed. The internal FBI mailing system is not acceptable. It is preferred that the complaint be filed with the Bureau's Equal Employment Opportunity Officer; however, any of the following officials are authorized to receive discrimination complaints: Equal Employment Opportunity Officer Federal Bureau of Investigation Room 7901 935 Pennsylvania Avenue, Northwest Washington, D.C. 20535"0001 Black Affairs Program Manager or Federal Women's Program Manager or Hispanic Employment Program Manager or Selective Placement Program. Manager (These individuals are located at the same address as listed above for tbe FBI's EEO Officer.) Director Federal Bureau of Investigation Room 1176 935 Pennsylvania Avenue, Northwest Washington, D.C ..20535-0001 (Rev. 2/2003) tlH IEL:I - nt.JJ I Special Agent in Charge Field Office Field Office Address Director, Equal Employment Opportunity (Assistant Attorney Geneml for Administration) U.S. Department of Justice lOth & Constitution Avenue, Northwest Washington~ D.C. 20530 If you file your complaint with any of the above FBI officials (other than the EEO Officer), it.will be sent to the EEO Office for processing. Also, if you choose to file your complaint with any of the other officials listed above~ ~ sure to provide a copy of your complaint to the EEO Office to ensure prompt processing. In addition, if you file your complaint or a copy of same with the Department of Justice (DOJ), ensure that you care:fully review and comply with the instructions regarding the dissemination of complaint material as contained in the Prohibited Communications form furnished you. This is necessary since not all employees of the DOJ have top secret clearances. It should be emphasized that a complainant may not wittingly or unwittingly disclose sensitivelcla.ssifi¢ information to individuals/agencies not having the appropriate security cle~ce to receive such information. To avoid inadvertent disclosure of sensitive or classified infonnation that may be contained with the :filing of a complaint fonn, it is suggested that all FBI employees file their complaints with the FBrs Equal Employment Oppo~ity Officer. The complaint must be spec:ifie and encompass only those ma.ttel'$ discussed with me. If you retain an attorney or any other petSOn to represent yo~ you and your representative mUstiinmediately notify the EEO Officer, in writing. You and/or your representative will receive a written notice of receipt of your discrimination complaint. Regarding your contacts with your represen~tive, ensure you. comply with instructions in the Prohibited Communications form. (Rev. 2/2003) S0/£0'd 9v0l vc£ c0c t:JH I EI::l - nW:)l .___ _ _ ___.IDiscrin. .tion Complaint page 1 FBI Violation of 1973 Rehabilitation Act History fu.late June I submitted an application for aDposition as advertised in announcement ·I II was contacted several weeks later for an interview. On Auglist 25, I received notification via e-mail that I had been selected for this position and that I needed to submit an SF-86 and other forms to process my background information. These forms were submitted as requested. b6 On October 12, I had an interview at the FBI office at 7799 Leesburg Pike, Falls Church, discuss my SF-86 aflication for a clearance. This Virginia by Agen~ was a normal interview to discuss my SF-86 and Agen Iwas polite and · professional the entire time. We discussed among other items, my previous medical historvl I Ito ~ was ...._~------~ I also given a drug test and fingerprinted as part of this meetmg. On October 24 from approximately 9:30am until11:20am I was administered a Polygraph examination as part of the FBI pre-employment activity. The test took place at the FBI office in Suite 200, 7799 Leesburg Pike, Falls Church, Virginia and was administered by Agend lwho indicated he had been with the FBI for a total of Dears and conducting Polygraph examinations for the previouGvears. Agend lwas courteous, professional and went over the questions he would be asking me during the Polygraph examination. Before the actual Polygraph, Agent asked me about my medical history and I gave him the same information that was on my SF-86 and previously given to Agent I IBefore· the Polygraph examination I voluntarily signed a document consenting to the Polygraph examination. Agen~ lthen started the examination by asking me a set of questions about foreign influences. I I I remember that Agentl lseemed slightly upset after the first set of questions aboutl ~ecause he was mumbling something in an exasperated tone. During the second set of questions about drug usage, my fingers were turning cold from the pressure cuff, and when there was a break in the questioning, I started rubbing my forearm to help the circulation in my arm. Agen~ must have noticed that I was rubbing with my arm, because he asked me if I was alright, I said "yes, but my arm is falling asleep". Age11:d ldid not say anJili;ing but proceeded with the second repetition of the drug usage questions. I b6 b6 .___ _ _ __.piscrin. page2 .tion Complaint After the second repetition of the drug usage questions A en turned off the machine and told me I had "failed". I said to Agent at I had told the truth said that the and could not explain why I would have "failed". Agen Polygraph indicated I was hiding somethin~ and it would be better to admit to a problem lthat I would like to help him, but then to "fail" the Polygraph. I said to Agen _ I had told the truth, and I could think of no rational reason why the Polygraph would indicate that I "failed". Agentl Pten explained he would report the test as "failed" and he was certain it would be certified as such. I would therefore be disqualified from any further consideration for this position or any future employment with the FBI. r After I recovered from the emotional shock of being accused of deception, I immediately started investi;ate why the Polygraph results were incorrect. I tried to contact both Agents andl ko discuss if the trouble with my arm may have affected the results; however neither returned my phone calls. I had explained to Agen~ !during my SF-86 interview on October 12, one of the attractive attributes of my current positio~ was that I helped defend my country. I viewed the FBI positiOn as an opportunity to more directly employ my talents and experience in_ the fight against Terrorism. I After investigating the Polygraph examination and my medical history, I initiated an EEO complaint of discrimination. I have recorded below the results of my investigation as background for the EEO complaint. .___ _ _ ____.piscrirr. page3 tion Complaint The Polygraph Results conflict with fact I believe the Polygraph results indicating deception conflict with the following: • · I had cooperated with every request from the FBI and had not attempted to evade/avoid the Polygraph examination. . . _ _ _ _ I_ _ _ _ _ _ _ _ , emarked on my candor in providing so much detail rather than attempting to gloss over or hide my past mistakes. ·L..--___,........1 • I had already passed a drug test as part of my interview on October 12. • I had already submitted my fingerprints as part of my interview on October 12. • I have now initiated an EEO complaint, which will draw intense scrutiny to this situation and to my past. This would be acting against my own interests if I was trying to hide a portion of my past from inspection. .___ _ _ ___,piscrim tion Complaint page4 This was my first Polygraph and I Trusted the FBI The FBI website states: "Except where otherwise provided by law, there will be no discrimination because of color, race, religion, national origin, political affiliation, marital status, disability, age, sex, sexual orientation, membership or non-membership in an employee organization, or on the basis of personal favoritism" "The FBI welcomes and ~ncourages applications from persons with physical and mental disabilities and will reasonably accommodate the needs of those persons. The Bureau is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice" Having no previous experience with this kind of test, I had no reason to doubt my ability to pass it. I was determined to tell the truth. My medication allows me to perform my job, and physiological side-effects have not previously caused any job related problems. The FBI was already aware of my mental disability through the SF86 1 and the interviews with both agents. The FBI has extensive experience with· the Polygraph and should have been vigilant to utilize the Polygraph in a responsible manner2• The OPM website states as follows: "Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S. C. Section 791),.prohibits discrimination on the basis of disability in Federal employment and requires the Federal Government to engage in affirmative action for people with disabilities. The law: *Requires Federal employers not to discriminate against quali]iedjf)b applicants or employees with disabilities.... Federal employers should ensure that their policies do not unnecessarily exclude or limit persons with disabilities because of a job's structure or because of •.. procedural, or attitudinal barriers. *Requires employers to provide "reasonable accommodatio~s" to applicants and employees with disabilities unless doing so would cause undue hardship to the employers.. Such accommodations may involve, for example •.• adjusting or modifying examinations••. *Prohibits selection criteria and standards that tend to screen out people with disabilities, unless such procedures have been determined through a job analysis to be job-related and consistent with business b6 piscrin. tion Complaint pageS L...--------' necessity, and an appropriate individualized assessment indicates that the job applicant cannot perform the essential functions of the job, with or without reasonable accommodation *Requires Federal' agencies to develop affirmative action programs for hiring, placement, and advancement ofpersons with disabilities ... " The FBI website states it requires 3 all applicants to successfully "pass" the Polygraph examination as a condition for a complete adjudication. Therefore the ability to successfully "pass" a Polygraph becomes a requirement of the position. Mydisabilities and the medications I use (both correctl] listed on my SF-86) put me into a disability class with a tendency to "fail" this test. 5 By not allowing a full adjudication, the FBI is using " .. .selection criteria and standards that tend to screen out people with disabilities ... ,,6 in violation of the Rehabilitation Act of 1973. The United States Intelligence Community website states: "Each Community member is an Equal Opportunity Employer and is compliant with the provisions of the Americans with Disabilities Act. Applicants must be US citizens willing to submit to polygraph examination. " 7 "US citizenship is required. All applicants must successfully complete an extensive background investigation. Some positions may also require medical · and psychological examinations and a polygraph interview. ,,s Based on these statements, passing a Polygraph examination is not a general requirement for an Intelligence Community job, only the willingness to submit to.a Polygraph is a requirement. I am a Qualified Applicant Under the Americans with Disabilities Act an individual with a dis.ability is a person who: • • • Has a physical ·or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment9 ; or Is regarded as having such an impairment. .___ _ _ __.IDiscrirr. tion Complaint page6 A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. fu making me a conditional offer the FBI had already evaluated, based on my resume, interview and application, that I was capable of the duties listed for this position as listed . in the announcement. 10 The Ability to Pass a Polygraph Examination is not a valid Suitability Requirement The listed duties of the position11 do not require the ability to successfully "pass" a Polygraph examination. The Department of Justice website contains the following warning statement concerning. the Polygraph: " ••. Though certain physiological reactions such as a fast heart beat, muscle contraction, and sweaty palms are believed to be associated with deception attempts, they do not, by themselves, indicate deceit. Anger, fear, anxiety, surprise, shame, embarrassment, and resentment can also produce these same physiological reactions. ,,z2 Beyond the above, I am in a class of disabled individuals likely to be judged "deceptive" (i.e. "fail") on a Polygraph; therefore it would be discriminatory to use the Polygraph results as a determination of suitability. The Ability to Pass a Polygraph Examination is not related to National Security At the completion of the informal portion of the EEO process, EEO c~unselorl I lwho was very helpful) said she had contacted the head of the FBI Polygraph L...--:------=-' unit and was told that "passing" the Polygraph examination was required because I would have to get an SCI clearance, which was required for this position. I have investigated this statement and I believe it is incorrect because of the following from DCID 6/4: · "The DCI exercises authority derived from statute and executive order over access eligibility to SCI and. delegates this authority to Determination Authorities through Senior Officials ofthe Intelligence Community .... Nothing in this directive or its annexes shall be deemed to preclude the DCI or the DDCI under the authority of the National Security Act of 1947, as amended, from taking any actions regarding an individualts SCI access." 13 [Sic14] b6 L...-_ _ _ _ ___.IDiscrirr. tion Complaint page? "The granting of access to SCI will be controlled under the strictest application of the "need-to-know" principle and in accordance with the personnel security standards and procedures set forth in this directive. ,,zs "Notwithstanding the status of an individual's background investigation, departments and agencies with policies sanctioning the use of the Polygraph for personnel security purposes may require Polygraph examinations when deemed necessary by the department or agency head to be in the national security interest of the United States. Where they exist, such Polygraph programs shall be characterized by unified training and certification as well as by coordination of scope, applicability and fairness issues to promote consistency, reciprocity and due process. ,,z6 "Polygraph (only agencies with approved personnel security Polygraph programs): in departments or agencies with policies sanctioning the use of the. Polygraph for personnel security purposes, the investigation may include a Polygraph examination, conducted by a qualified Polygraph examiner. ,,z 7 Based on these statements, passing a Polygraph examination is not a requirement from the DNI for getting a SCI, but a Polygraph examination may be required as a means of collecting information. Also Polygraph programs shall be characterized by coordination of fairness issues to promote due process. DCID 6/4 further defines the nature of the investigation for SCI as follows: "A quality investigation is a thorough and comprehensive collection of favorable and unfavorable information from a variety of sources, past and present, that may include employment(s), reference(s), neighborhood(s), credit, police, and the Subject. The determination of eligibility for access to sensitive compartmented information is a discretionary determination using the whole person concept that suc/J, access is clearly in the interests of the national security. Accordingly, the investigation will be comprehensive and in such detail so as to affirmatively address unquestioned loyalty to the United States, strength of character, trustworthiness, honesty; reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling and protection of sensitive compartmented information. ,,zs " ... The ultimate determination of whether the granting of access is clearly consistent with the interest of national security will be an overall common sense determination based on all available in/ormation. ,,zg "The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a b6 .___ _ _ ____,IDiscrirr. tion Complaint page 8 security clearance. Eligibility for access to classified information is predica,ted upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. ,,zo "Although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. Notwithstanding the whole person concept, pursuit offurther-investigation may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information. ,,zJ Because of my disabilities and the medications I rise, the.Polygraph examination should not be considered a source of " ... reliable, significant, disqualifying, adverse · information." 22 23 and FBI use of unreliable information to predict a final adjudication: 1) violates the "whole person concept" required by Presidential order. 24 2) works against the interest of National Security and undercuts the integrity of the SCI adjudication process, because it prevents an " ...overall common sense determination based on all available information." 25 and also prevents the " ... examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance..• ,,z6 Because of my disabilities anci medications I am unlikely to "pass" a Polygraph, a criteria that "passing" a Polygraph is a security requirement interferes with security clearance adjudication and constitutes discrimination under the rehabilitation act of 1973; violates executive order 12968, Section 3.1(c) and Section 3.1(e); and viol3;tes the requirement of promoting due process in DCID 6/4 - Section 7 .e. · - b6 L...-----...JIDiscrim page9 _tion Complaint The FBI's Action is Deliberate Discrimination in Violation of Rehabilitation Act of 1973 · Again, as explained above, because of my disabilities and medications I am in a class more likely than average to fail this test. Therefore, I believe for the FBI to require27 that I must have the ability to successfully "pass" the Polygraph examination as a condition for a complete adjudication, constitutes discrimination. Because the FBI did not attempt .to explain or resolve this complaint during the informal phase of the EEOC process, the FBI's actions should not be considered accidental, but existing policy that deliberately violates Federal Law to discriminate against specific groups of mentally disabled applicants. Proposed Remedy I am therefore suggesting the following Remedy, in the belief that they will not impose undue hardship or undermine the ability of the FBI, the CIA or other intelligence agencies to protect our country. 1. The classification of my Polygraph results of October 24 as "NO OPINION" rendered 2. A psychiatric/psychological adjudication by OPM of my abilities to meet the required standards of conduct for this position including that I am "stable; trustworthy; reliable; of excellent character, judgment, and discretion; and of unquestioned loyalty to the United States". The results of the OPM adjudication will be made a permanent part of my FBI file. 3. The FBI will proceed with the full Background Check/Adjudication bosition for which I was selected will continue to be available to me 4. based on a favorable final adjudication of suitability (including the security requirement). · Thq b6 I thank you for your prompt attention to this matter. (cell) (work) (home) L...---------1 L.-_ _ _ _ __.jDiscrim tion Complaint page 10 REFERENCES 1 My SF-86 contained the following statements: MEDICAL -1 I 2 "In those instances when the examinee is undergoing treatment by a medical or mental health professional, coordination with the attending medical or mental health professional is essential to evaluate the examinee's overall suitability and to obtain medical clearance to conduct PDD testing. This form of coordination is also necessary to ensure that PDD testing does not interfere with ongoing treatment efforts and to prevent PDD testing of an otherwise unsuitable examinee. Psychological Suitability: Polygraph testing of an examinee receiving current, on-going treatment and/or prescribed medication by mental health professionals (psychiatrist, psychologist, mental health counselors . or other mental health professionals) shall be discontinued or·postponed until the examinee's attendiqg mental health professional declares the individual suitable for PDD testing. Verbal authorization froni the attending mental health professional is permitted, but should be the exception and not the rule. In instances where the examinee cites mental health related illnesses associated with severe depression or other severe illnesses, written authorization from the attending mental health professional is mandatory. Any questions co'!lcerning an examinee's psychological suitability for PDD testing must be addressed with the attending mental health professional and/or a CRC supervisor prior to PDD testing. Physiological Suitability: Polygraph testing of an examinee being treated and/or prescribed medication by medical professionals (doctors, physician assistants, nurses, bt other medical specialist) for significant injuries or illnesses shall be postponed until the examinee's attending medical professional declares the individual suitable for PDD testing. Verbal authorization from the attending medical health prOfessional is permitted, but should be the exception and not the rule. In instances where the examinee Cites severe medical illnesses, written authorization from the attending medical professional is mandatory. Any questions concerning an examinee's physiological suitability for PDD testing must be addressed with the attending medical professional and/or a CRC supervisor prior to PDD testing.", FORENSIC PSYCHOPHYSIOLOGICAL DETECTION OF DECEPTION(PDD) POLICY AND PROCEDURE MANUAL, Section 8.12 Examinee Suitability, UNITED STATES ARMY CRIMINAL INVESTIGATION COMMAND, Effective 21 February 2005 3 "Each applicant who successfully completes the initial application process to include testing and interviews will be required to successfully complete a polygraph examination in order to continue processing ... Upon successful completion of the polygraph examination and drug test, applicants will be afforded a full-fledged background investigation which includes credit and criminal checks; interviews of associates; contacts with personal and business references; interviews of past and current employers and neighbors; and verification of birth, citizenship, and educational achievements .... " FBI Website 4 " .. .innocent neurotics and particularly psychotics were likely to be identified as deceptive.... " Scientific Validity of Polygraph Testing: A Research Review and Evaluation- A Technical Memorandum, U.S. Congress, Office of Technology Assessment, Washington D.C., OTA-TM-H-15, November 1983Chapter 6 Factors Affecting Polygraph Examination Validity- Other Psychopathology in reference to [74. Heckel, R. V., Brokaw, J. R., Salzberg, H. C., and Wiggins, S. L., "Polygraphic Variations in Reactivity Between Delusional, Nondelusional, and Control Groups in a Crime Situation," Journal of Criminal Law,. Criminology and Police Science 53:380-383, 1962.] 5 letter froniL-_ _ _ ____.1- Attached b6 L..-_ _ _ _ ___.IDiscrirr. .tion Complaint 6 See htto://www.opm.gov/disability!hrpro 5-0l.asp 7 See http://www.intelligence. gov/3-whyworkic.shtml 8 9 page 11 See htto://www.intelligence.gov/3-career infotech.shtml Op Cit (see I) 11 IBID 12 United States Department of Justice Attorneys Manual, Section 9-13.300- DOJ Website 13 Personnel Security Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information (SCI), DCID 6/4 14 Under public law 108-458, the "INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004", the Director of National Intelligence (or DNI) now has the responsibility for the Standards and Procedures Governing Eligibility for Access to Sensitive Compartmented Information 15 Op Cit (see 13)- section 4.a 16 IBID - section 7 .e 17 IBID- Annex A, Section 13.o 18 IBID -Annex B, Section 2 19 IBID- Section 10 20 IBID- Annex C, Section B. I L...------_.piscrirr, 21 iBID- Annex C, Section B.4 22 Op Cit (see 4) 23 Op Cit (see 5) tion Complaint 24 page 12 Adjudicative Guidelines For Determining Eligibility for Access to Classified Information, Approved by the President March 24, 1997 25 IBID - Section 10 26 Op Cit (see 13) -Annex C, Section B. I 27 Op Cit (see 3) Transmission Report Date!Time locaiiD 1 locall02 I 11-15-2005 Transmit Header Text ~.,I~~=-:-------1 local Name 1 SBA 1300 3 local Name 2 03:03:23 p.m. This document : Confirmed (reduced sample and details below) Document size: 8.5"x11" November 15, 2005 ATIN~a..._ _ ____.IFBI EEOC Faxed to! hn 1:1/15/05 Mailed via Certified mall on 1:1/15/05 Attached Is an EEO complaint form 201-A related to discrimination on October 24, 2005. I have included additional information that I think might be relevant. ....... ·~ CC: Total Pages Scanned : 17 I No. I Job I 001 1451 . Remote Station Abbreviations: HS: Host send HR: Host receive WS: Waiting send Total Pages Confirmed : 17 I Start Time I Duration I Pages I line I Mode I Job Type I Results I ll----.t..:I0:::2.:..:::5~8:~4.::..2.!::.:p.~m:.:. . .:_11:....·.:..:15:...:-2:.:0:.:.05:....t..: lo:.:o.:..::0:.:.3:..::5..:.6_....~1..:.1.:..:7/..:..;17:..___....~1..:.1_ _.~IE::..:C:..__--~.I.:...Hs.:..._ . .: _ _..J.I_C_P2_a_a_oo---~1 Pl: Polled local PR: Polled remote MS: Mailbox save MP: Mailbox print CP: Completed FA: Fail TU: Terminated by user TS: Terminated by system RP: Report G3: Group 3 EC: Error Correct Complaint or "iscrimination ·partment of Justice (See instn1ctions on 1.. • I'Se) .PRIVACY ACT STATEMENT: I. AUTHORITY- The authority to collect this information is derived from 42 U.S.C. Section 2000e-16; 29 CFR Sections 1614.106 and 1614.108. 2. PURPOSE AND USE-This information will be used to doeumcnt tlte issues and allegations of a complaint of discrimination based on mcc, color, sex (including se:-.'Ual harassment), religion, national origin, age, disability (physical or mental), sexual orientation or reprisal. The signed statement will serve as tltc record necessary to initiate an investigation and will become part of the complaint file during the investigation; hearing, if any; udjudication; and appeal, if one, to tlte F,qual Employment Opportunity Commission. 3. EFFECTS OF NON-D1SCLOSURE-Submission of this information is MANDATORY. Failure to furnish this information will result in the complaint being returned wil.houl action. 1. Cnmnlgjpgp*"c p..11 ),lam a code) 2. Your Home Str<><>t Arltln>oo nr PnYMENT OPPORTUNITY COMMISSION WASHINGTON FIELD OFFICE 1801 L Street, N.W. S. 100 Washington, D.C. 20507 ) ) ) ) Comp Iamant, ) v. Alberto Gonzales, United States Attorney General, United States Department of Justice, (Federal. Bureau ofinvestigation), Agency. ) ) ) ) ) ) ) ) ) b6 EEOC Case. No. I Agency Cafe No. I January 31, 2007 ~----------------------~) ORDER ENTERING JUDGMENT For the reasons set forth in the enclosed Decision, judgment in the above-captioned matter is hereby issued for the Agency. A Notice To The Parties explaining their appeal rights is attached to the Decision. .It is further ordered that the Agency shall provide this office with a · copy of its decision in this matter. This Office is also enclosing a copy of q1e hearing record and the Report of Inves.tigation for the Agency. It is so ORDERED. For the Commission: ~-?It, ~eivt Gerald M. Goldstein Administrative Judge 202.419-0747; Fax 202.419.0739 By U.S. Mail First Class: Mark Gross . Complaint Adjudication Officer U.S. Departm~nt of Justice Civil Rights D~vision Patrick Henry Building 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 [Hearing Record and Report of Investigation] By Facsimile: ' ! b6 UNITED STATES 0 F AMERICA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WASHINGTON FIELD OFFICE 1801 L Street, N.W. S. 100 Washington, D.C. 20507 ) ) ) Co1~1p lain ant, ) v. Albe1io Gonzales, United States Attomey General, ·united States Depmiment of Justice, (Federal Bureau o.finvestigation), Agency. ) ·) ) ) ) ) ) ) ) ) EEOC Case. No. I I Agency Case No. I J mmary 31, 2007. ----------------------~.) DEClSION This is a Decision issued pursuant to 29 C.F.R. § 1614.1 09(g) (2006). On August 23, 2006, the United States Depmiment of Justice, Federal Bureau of Investigation, ("FBI"nr "Agency") submitted a Motion for Findings and Conclusions Without a Hearing in Favor of the Agency ("Motion" or "Motion for Summary Judgment"). Complainm1t filed an Opposition ("Opposition"), which the Agency filed a Reply thereto: 1 ISSUES ACCEPTED FOR INVESTIGATION The allegations accepted for investigation were: Whet~1er the Complainant was qiscriminated against based on mental disability a11d reprisal for his EEO activity, when b letter dated Nove conditional offer of employment fo.r the vacm1cy announce~n~nt number was rescinded as a result of his 1 Complainant's subsequent filing after the submission of the Agency's Reply will not"be considered in this proceeding. 'b6 fai.lure to pass a polygraph examination. Report of Investigation ("ROI"), Tab. 6. BACKGROUND AND FACTS In late June 2005, the Complainant,L.I_ _ _ _ _ _ _ _ _ _ ____.Ior "Complainant"), submitted an application for~ lwi~h the FBI in response to Vacancy Annquncemen~L.----___.t'Vacancy Announcement"). ROI, Complaint ofDiscrimination, Tab 2, and Vacancy Announcement, Tab 14. The Vacancy Announcement indicated that the !required Top Secret and Sensitive Compartmented Infonnation L----------~ :("SCI'') clearances. 2 ROI, Tab 14. The Vacancy Announcement stated that applicants must "consent to a compiete background investigation, urinalysis, and polygraph." !d. In addition, the Vacancy Announcement advised disabled applicants who needed a reasonable accommodation to contact the FBI to request such an ·accommodation. I d. Complainant submitted an application for the Vacancy Announcement and was given a conditional offer of employml:int from the FBI. Amended Complaint of Discrimination, ROI, Tab 2. The offer of employme-nt was conditional on Complainant's successful completion of a background check and his passing of a polygraph examination. ROI, Tab 2; Manual of Investigative Operations and Guidelines ("MIOG") Part 1, Section 67-8.2 ~~seq., ROI, Tab 27. The I:BI requires that all applicants for pennanent employment pass a polygraph examination. MIOG Pa1i 1, Section 67-8.2.1, ROI, Tab 27. As part ofthe process of obtaining a Top Secret clearance, Complainant submitted a Top Secret and SCI clearances are separate clearances as explained in Executive Order 12958- Classified Nation~! Security Information, as Amended, attached to the Motidn as Exhibit 1 and Director of Central Intelligence 2 Directive 6/4 Personnel Security Standards and Proceditres Goveriiing the Eligibility for Access to Sensitive Compartmented Information ("DCID 6/4"), Exhibit 2, Motion. All FBI employees must have a Top Secret clearat'lce, C)nd only those employees exposed to SCI must also have SCI clearance. 2 b6 Questionnaire for National Security Positions ("SF-86") to the FBI. SF-86, ROI, Tab 15. Complainant indicated in the SF-86 that he had been previously diagnosed I J !d. He stated jid. On October 12, 2005, the FBI conducted a security interview and reviewed the SF-86 with .... I _ _ _IROI, Tab 2. On October 24, 2005, Complainant took a polygraph examination with the FBI. !d. Prior to the polygraph examinl?-tion, Complainant signed a document, "Applicant Agreemenno Interview wit;h'Polygraph" ("Polygraph Agreement"). Polygraph Agreement, ROI, Tab 20. Complainant signed the following statement in the Polygraph Agreement: I understand that I am being requested to undergo a polygraph examination regarding information I have provided in my application for employment or in interviews relating to my suitability for employment. I further understand that the results of the examination, my refusal to undergo a polygraph. examination, or my failure to cooperate during a polygraph examination will be considered along with the other factors in evaluating my suitability for employment. I understand that, should deception be indicated during the course of this examination, I will not be eligible for further consideration for the position for which I am applying. !d. Complainant did not request any accommodation fi:om the FBI due to any alleged disability prior to taking the polygraph test.Oswom Statement, 2, ROI, Tab 11;._1_ _..... Swom Statement, 5, ROI, Tab 9. During the polygraph examination, two series of questions- . . Complainant answered . Series I and Series II. Polyg1:aph Rep~ti, ROI, Tab 20. 3 ~. .l _ _ ___.lresponses during Series I were not indicative of deception. Complainant's responses during Series II were "indicative of deception." Jd. Series II included questions about the use and sale of illegal drugs and whether Complainant had wi~hheld any inwmiant infom1ation from his application. Immediately after i Series II, the FBI polygrapher told Complainant that he had "failed" the polygraph examination I and that he would . . bd disqualified from any further consideration for the position with the FBI. Complaint ofDiscri1}1ination, ROI, Tab 2. On October 26, 2005, at 4:04p.m., Complainant contacted an EEO counselor from the FBI's Office of Equal Employment Oppmiunity Affairs ("OEEOA"). Exhibit 3 of Agency's I Reply Brief. The Complainant's first contact was in the fonn of a letter sent via facsin:iile to OEEOA. As pmi of the FBI's processing of Complainant's polygraph examination, the FBI's Applicant Program 1;1anager, Polygraph Unit, Security Division, independently reviewed the results of his polygraph. Oswom Statement, 2, ROI, Tab 11. This review also occun·ed on October 26, 2005, the same day that Complainant faxed his letter to OEEOA. ROI, Tab 20. The Applicant Program Mm1ager agreed with the polygrapher's conclusion that Complainanfs responses duri!lg Series II were indicative of deception. !d. On Novembe~ 28, 2005, the FBI's Security Division sent a letter to Complainant indicating that the conditional offer of employment was rescinded because the results of his polygraph examinati?n were not within acceptable parameters.L.I_ ____.!Letter, ROI, Tab 21. I On Decembef 2, 2005, Complainant sent a letter to the Assistant Director of the Cyber Division.L.I_ _...,~IL~tter, ROI, Tab 22. 4 b6 !d. He stated he was willing to take more polygraph examinations but that he felt they would "generate unreliable results" and only "waste the FBI's time and money." !d. Complainant did not submit any medical documentation to b6 support his request for a waiver. I On January 24, 2006,L.I_ _ _ _ _.....IchiefPersonnel Adjudicatio~1s S~ction, of the FBI's Security Division sent a letter denying Complainant's request for a waiver of the polygraph examination requirement. ~. .I_ ___.!Letter, ROI, 'fab 23. Chief._!_ ___.!stated that Complainant had failed to submit any medical documentati~n suppmiing Jhis request for a waiver of the polygraph tests. ANALYSIS Sununary judgment is appropriate if the record and the pleadings e,stablish no genuine issue as to any material fact and the moving party is entitled to judgment as a matter oflaw. 29 C.P.R. § 1614.109(g); See also, Mwphy v. Dep 't of the Army, EEOC Appeal No. 01A04099 (July 11, 2003) (noting that the regulation governing decisio:J;ls without a hearing is modeled after Fed. . . R. Civ. P. 56). Only disputes over facts that might affect the outcome of the suit under.goveming I law, and not in·elevant or mmecessary factual dispute~, wi~l preclude the ep.try of sunnnary judgment. Anderson v. Liberty Lobby, Inc., 4 77 U..S. 242~ 248 (1986). 3 .Jn opposing summary I judgment, Complainant may not rest upon mere allegations.; Fed. R. Civ. !P. 56( e). Instead,. Complainant "must set forth specific facts showing that there is a genuine .issue" that requires a 3 . There is no genuine issue of material fact if the relevatit evidence in the record, taken as a whole, indicates that a reasonable fact-finder could not return a verdict for the party opposing sunuDary judgment. Anderson v. Liberty Lobby, inc., 477 U.S. 242, 248 ( 1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Aka v. Wash. Hasp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en bane) (adjudicator must ass~ss all evidence in its full context to decide whether sunimai'y judgment is appropriate). For ptuposes of deciding the Motion for Sunu11ary Judgment, all facts are construed in the light most favorable to the nonmoving party, the Complainant. 5 hearing. !d. To establish a factual dispute, affidavits must "be made on personal knowledge, ... set[ting] forth such facts as would be admissible in evidence." !d. See also Greene v. Dalton, 164 F.3d: 671, 675 (D.C. Cir. 1999). In this administrative process, summary judgment may only be granted when the record I I is sufficiently developed to support a decision without a hearing, keeping in mind the quasiinvestigative nature ofthese proceedings. Petty v. Dep 't ofDef, EEOC Appeal No. 01A24206. (July 11, 2003); See also Murphy at 3. JURISDICTION The Commission does not have the authority to review the substance of security clear·ance detenninations or the validity of ah employer's national security requirements. See Dept. ofJustice, EEOC Appeal No. 01A10538 (March is, 2001); Galbreath v. Dept. of Lau v. ! . i . . . Navy, EEOC Request No. 0548927 (November 4, 1999); Schroeder v. Dept. ofDefense, EEOC Request No. 05930248 (April14, 1994); Lyons v. Dept. ofNavy, EEOC Request No. 05890839 (March 22, 1990) (The Commission has.indicated it is precluded from reviewing the sub~tance ·o[ security clearance decisions and the validity ofthe security requirement itself.). The Cmmnission is also precluded from reviewing the credence and/or the pretextuality of an agency's articulated reason of a national secmity interest. Lau, supra.(A complainant who challenges the validity of an agency's national security requirements ... fails to state a claim I over ~hich the Commission has jurisdiction."). i · The Commission does not have jurisdiction to review either the Agency's requirement that all employees pass a polygraph examination or the issue of whether the Complainant's I polygraph examination results support the Agency's decision to rescind the offer of employment. i . . . How~ver, the Commission does have jurisdiction to detennine whether the grant, denial, or 6 revocation qf a security clearance was conducted in a nondiscriminatory manner. !d. The Commission has jurisdiction over claims that the Complainant was subjected to disparate treatment during the Agency's application of a national security requirement. Lyons, supra. CLAIMS OF DISABILITY DISCRIMINATION I To e.stablish a case of disability discrimination, Complainant must initially establish that he is a qualified individual with a disability. 29 C.P.R. § 1614.203(a)(6). A "qualified individual with a disability" is ari individual with a disability who, with or without reasonable accommodation, can perfom1 the essential functions of the position in question. 29 C.P.R. §§ 1614.203(6) at~d 1630.2. An "individual with a disability" is defined as one who: "(i) has a ' . physical or mental impainnent which substantially limits one or more of such person's major life activities; (ii) has a record of such an impainnent; or (iii) is regarded as having such an impainnent." 29 C.P.R.§§ 1614.203(a)(1) and 16J0.2(g). The term "maJor life activities" refers to such functions as caring for one's self, perfonning manual tasks, walking, seeing, hearing, speaking, breathing, .learning, and working. 29 C.P.R.§§ 1614.203(a)(3) and 1630.2(i). If Complainant meets the threshol~ definition of a person with a disability, the rieXt stage of inquiry is:w~ether·he is a "qualified" individual with a disability. 29 C.P.R.§ 1614.203.(c) (2). I A qualified ind~vidual is one who can perform the essential functions of the position in question I . with or wit119u~ reasonable accommodation. 29 C.P.R. § 16i4.203(a)(6). fu.order for the I Agency to hav~ a duty to accommodate a disability, Co_mplainant must show that he/she is a qualified· individual with a disability. See Toyota Motors Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 693-94 (2002); 29 C.;F.R: § 1614.203(c) (2004). If Complainant proves that he is a qualified individual with a disability, the analysis may continue along traditional Title VII lines (see St. Mary 1s Honor.' Ctr. v. Hicks, 509 U.S. 502 7 (1993)), or, if reasonable accommodation is at issue, then the Agency must demonstrate that it was not possible to accommodate the handicap without undue hardship on the operation of its program. 29 C.P.R. § 1630.9; Carter v. Bennett, 840 F. 2d 63, 65-66 (D.C. Cir. 1988). POLYGRAPH EXAMINATION REQUIREMENT The Agency requires that all applicants pass a polygraph examination. Consequently, the circumstances smTotmding the polygraph examination requirement do not give rise to an inference of discrimination. See Ward v. Dept. ofJustice, EEOC Appeal No. 01973627 (April 20, 2000) (holding that disparate treatment claim failed as a matter of law because the agency required all applicants to take and pass a polygraph examination.) Therefore, Complainant's claim that he was subjected to disparate treatment because he was required to pass a polygraph examination fails as a matter of law. LACK OF SECOND POLYGRAPH EXAMINATION Complainant implies that he was treated differ~ntly than.the complainant in Ward and. other applicants whom he claims were given reasona~le accommodations during the polygraph process. In Ward, the complainant was given a second opportunity at a polygraph examination and questions were ·altered by the agency in an effort to accommodate the complainant's disability. In the present case, the Agency admitted that it had "changed the relevant questions for certain applicants." ROI, Tab 12, 4. Complainant ru.iiculated his theory of disparate treatment for the first time· in his Opposition. The accepted issue was whether the Agency discriminated ·against him when it rescinded his conditional offer of employment, not whether the Agency disc1iminated against him by failing to offer a second polygraph examination. ROI, Tab 3. 4 4 Although this new allegation is dismissible as Complai:pant failed to exhaust his administrative 8 . ' The Complainant's claim of disparate impact on the grounds that he was not given reasonable accommodations during the polygraph examination process fail as a matter of law because he cannot establish his prima .facie case. The Complainant has not established that he is "qualified" for a position with the Agency. According to 29 C.P.R.§ 1614.203(a)(6), a "qualified individual with a disability" is a disabled. person who, with or without reasonable accommodation, can perfom1 the1 essential functions of the positim1 i.n question. Zimmerman v. National Archives, EEOC Appeal No. 01941377 (May 18, 1995). The Agenc'y requires that all applicants pass a polygraph examination as a condition ofemployment. Ward, supra. An applicant who fails the polygraph examination is precluded from employment. !d. According to t~e Complainant, his purported disability deprives him of the ability to provide reliable polygraph exan1ination results. Without the ability to provide reliable polygraph examination results, the Complainant is unable to meet the necessary. requirement of passing a polygraph examination. · Also, the circumstances of the Complainant's polygraph examination 9-o not give rise to \ an inference of discrimination. The Complainant attempts to create an inference of discrimination by showing that he was treated differently than other allegedly similarly situated .: applicants. Assuming arguendo that the agency in Ward was the FBI, there are enough differences I such that the Complainant is not similarly situated to Ward. 5 In Ward, the applicant sought I employment in August 1994. Ward applied for a position as a Litigation Suppmi Attorney, while the Complainant sought a position a~ ' jward ~nly required a Top ~--------------~ I remedies, it will be discussed infra. 5 'The published decision in the Ward case does not identify the agency within the Department of Justice to which that complainant applied for a position. 9 Secret clearance not an SCI clearance. Ward attributed his polygraph examination results to his inability to recall certain events due to alcohol-induced blackout periods, whereas the Complainant attributes his polygraph examination resultsl~...--_ _ _ _ _ _ _ _ _ _.....1 ROI, Tab 22. These differences are sufficient to conclude that the Complainant and the applicant in Ward were not similarly situated. Assuming arguendo that the Complainant and the applicant in Ward are similarly situated, as explaine~ below, there is no basis tci infer discrimination in these circumstances. Ward was pem1itted to take a second polygraph examination after he sought EEO counseling. Ward complained of discrimination before he was pem1itted a second polygraph examination and that the offer of a second polygraph occmTed during the infom1al counseling period. There is no reason· to infer that Ward was given preferential treatment compared to the Complainant. As stated previously, Complainant never requested that he be given a second polygraph examination. Instead Complainant requested that the Agency waive the entire polygraph requirements, without submitting any medical evidence to support his request. ROI, Tab 22. In the absence of a request for a second polygraph, it is even more difficult to infer discrimination based upon the Agency's failure to give the Complainant one. Additionally, the Complainant stated on several occasions that the results of any polygraph examination that he might take would be unreliable. According to the Complainant, he is willing to. take additional polygraph examinations but that they would "generate unreliable results and only waste the FBI's time and money." ROI, Tab 22. Based upo.n of these circumstance, there is no reason to infer that the Agency's failure to offer the Complainant a second.pC?lygraph examination was motivated by a discriminatory animus against the Complainant. 10 b6 REASONABLE ACCOMMODATION The acconmiodation that the Comp~ainant seeks is a waiver of the requirement that he pass a polygraph examination. The Complainant's :reasonable accommodation claim involves the Commission's jurisdiction with respect to the FBI's securi~y clearance measures. In this case, the Complainant seeks to have the Commission order the Agency to eliminate a national security requirenient, i.e., passing a polygraph examination, which the Agency has deemed necessary to detem1ine who wm be granted access to classified infonnation. If Cmriplainant's request were granted, it would pem1it the Commission, not the FBI, to have the final say in deciding whether to repose trust in an employee who seeks access to ~lassified infonnation, which is co11trary to existing precedent. See Dept. ofNavy v. Egan, 484 U.S. 518, 529-30 (1988)~ The Commission, therefore, has no jurisdiction over the Complainant's claim seeking that specific reasonable accommodation under the Rehabilitation Act. The Complainant argues that the Agency's polygraph examination requirement is a suitability requirement rather than a national security-requirement. According to the Agency, the poly~raph examination requirement is both. Assuming arguendo that the Complainant. is-correct and that the Commission has jurisdiction over the Complainant's reasonable accommodation claim, Complainant must show, inter alia, that he is a "qualified" individul'J-1 with a disability. Terry v. Dept. ofAgriculture, EEOC Appeal No. OlA41609 (Aug. 25, 2006) ajf'd EEOC Request No. 052007 (Nov. 9, 2006). As stated above, the Agency requires that all applicants pass a polygraph examination as a condition of employment, and any applicant who fails the polygraph examination is precluded from employml?.~~t. Egan, supra. The Complainant failed his polygraph examination. An essential requireme1'lt and perquisite of obtaining employment with the FBI, was passing the polygraph examination. Absent meeting one of the basic and 11 essential perquisites for employment with the Agency, Complainant was not qualified for a position with the Agency. Moreover, the Complainant admitted that there is no reasonable accommodation available for his purported disability. ROI, Tab 22. The Complainant asserted that the results of any polygraph examination would be unreliable; therefore, he has requested that he be excused from passing a polygraph examination. As stated pr~viously, passing a polygraph is an essential requirement for the position at issue in this proceedil'lg. Because this requirement is necessary for national security reasons, the Agency ca1mot be compelled to waive it. Egan, supra. In the . absence of any alternative, no accommodation exists. If no accommodation exists, then the Complainant is not a "qualified" individual. Terry, supra. ("Upon review of the record, we find that complainant did not show that there was an accommodation available that would have allowed her to perforn1 the duties of[the] position. Therefore, complainant has not shown that she [is] a qualified individual with a disability.,). REPRIS~ CLAIM i To establish a prima facie case of reprisal Complainant must demonstrate: (l)he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) he was subjected to adverse treatment by the Agency; and (4) a nexus existed between the protected activity and the adverse treatment." Id. "A nexus mky be shown by evide?ce that the adverse treatment followed the protected activity within such; a period oftime and in such manner that a reprisal motive is infened." Grier, Jr. v. Dept. ofTrdnsportation, EEOC Appeal No. 01A53088 (Aug. 7, 2006). As stated previously, the Commission does not have the authority to review the substance of the Agency's national security detennination. Assuniing arguendo that the Commission has jurisdiction ove1: the claim for reprisal, the timing and the nature of 12 Complainant's disqualification for employment do not create an inference of reprisal. . The record established that the Complainant first notified the Agency of his claim of discrimination on October 26, 2005, at 4:04P.M. E?Chibit 3 of the Agency's Reply Brief. The Complainant notified the Agency via a facsimile to OEEOA. On that same day,._l_ _ _ _ __. ~-.-_ _ _ _ _ _ _ _ ____,!reviewed the results of the Complainant's polygraph examination and concuned wi~h the polygrapher's conclusion that the Complainant had failed. Based upon the time of day the Agency received the Complainant's letter and that the letter was sent via . . facsimile to OEEOA rather .thanOor the Agency's Polygraph Unit, there is no basis to infer thatl lconcunence was motivated by reprisal. The Agency's own regulations require that an applicant who fails the polygraph examinationbe precluded from employment with the Agency. The Complainant signed a statement thathis that his condition,al offer would be rescinded if he did not pass a polygraph examination. ROI, Tab 20. The rescission of the Complainant's conditional offer of employment based upon the polygraph examination results,.does not reasonably give rise to an inference of discrimination. Based upon the circumstances here, including the timing and nature of the rescission of the Complainant's conditional offer of employment, Complainant's c..laim for reprisal fails as a matter oflaw. CONCLUSION Conclusory asse1iions that the Agency's intention and motivation are que~tionable are not enough to withstand a summ:ary judgment motion. Goldberg v. Green & Co., 83~ F.2d 845, 848 (4th Cir. 1987); Ross v. Communications Satellite CQrp., 759 F.2d 355, 365 (4th Cir. 1985). 13 b? For the reasons set f01:th above, I conclude that Complainant has raised no genuine issues of material fact or credibility that would require a hearing. See Barbour v. Men·il, 48 F. 3d 1270, 1277 (D.C. Cir. 1995). Accordingly, the Agency's Motion For Summary Judgment is GRANTED. It is so ORDERED. 9eJZdd 11t. ~ For the Conunission: Gerald M. Goldstein Admjnj stratjye Judge b6 14 NOTICE This is a decision by an Equal Employment Oppmiunity Commission Administrative Judge issued pursuant to 29 C.F.R. § 1614.109(b), 109(g) or 109(1). With the exception detailed below, the complainant may not appeal to the Commission directly from this decision . .EEOC regulations require the Agency to take final action on the complaint by issuing a final order notifying the complainant whether or not the Agency will fully implement this decision within fmiy (40) calendar days of receipt of the hearing file and this decision. The complainant may appeal to the Commission within thirty (30).calendar days of receipt of the Agency's final ·order. The complainant may file an appeal whether the Agency decides to fully implement this decision or not. The Agency's final order shall also contain notice of the complainant's right to appeal to the Commission, the light to file a civil action in federal district court, the name of the proper defendant in any. such lawsuit and the applicable time limits for such appeal or lawsuit. If the final order does not fully implement this decision, the Agency must also simultaneously file an appeal to the Commission in accordance with 29 C.F.R. § 1614.403, and append a copy of the appeal to the final order. A copy of EEOC Fom1 573 musfbe attached. A copy of the final order shall also be provided by the Agency to the Administrative Judge. If the Agency has not issued its final order within forty (40) calendar days of its receipt of the hearing file and this decision, the complainant may file an appeal to the Commission directly from this decision. In this event, a copy of the Administrative Judge's decision should be attached to the appeal. The con1plainant should furnish a copy of the appeal to the Age~1c_y at the same time it is filed with the Commission, and should cetiify to the Commission the date and method by which such service was made on the Agency. All appeals to the Commission must be filed by mail, personal delivery or facsimile to the following address: · Director Office of Federal Operations Equal Employment Oppotiunity Commission P.O. Box 19848 Washington, D.C. 20036 Facsimile (202) 663-7022 Facsimile transmissions over 10 pages will not be accepted. COMPLIANCE WITH AN AGENCY FINAL ACTION 15 I' An Agency's final action that has not been the.subject of an appeal to the Commission or civil action is binding on the Agency. See 29 C.F.R. § 1614.504. If the complainant believes that the Agency has failed to comply with the terms of its final action, the complainant shall notify the Agency's EEO Director, in writing, of the alleged noncompliance within thirty (30) calendar days of when the complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and resp'ond to the complainant in writing. If the complainant is not satisfied with the Agency's attempt to resolve the matter, the complainant may appeal to the Commission for a dete1mination of whether the Agency has complied with the tenns of its final action. The complainant may file such an appeal within thirty (30) calendar days of receipt ofthe Agency's detem1ination or, in the event that the Agency fails to respond, at least thhiy-five (35) calendar days after complainant has served the Agency with the allegations·ofnoncompliance. A copy of the appeal must be served on the Agency, and the Agency may submit a response to the Commission within thirty (30) calendar days of receiving the notice of appeal. · 16 / / .,/ Memorandum v. Federal Subject: Co~p}aint No.~~--------~ Date: I ·.r I1·.An 8 2007 tA To: Unit Chief Federal Bureau of Investigation Supervisory Attorney Complaint Adjudication Office Enclosed is the Department of Justice Final Order and Memorandum Explaining the Final Order in the above case. Under EEOC regulations, complainant has 30 days from receipt of the Order to file an appeal with the EEOC's Office of Federal Operation.~·. If complainant files an appeal, the regulations require that you be sent a copy of the appeal. Upon receipt of any appeal, y6u should contact the FBI EEO Office so that the EEO Office may timely forward the case file to the EEOC's Office of Federal Operations. If you have any questions about this mailing, please contact me atl I cc: b6 ~: • I ~ ··.f-.}.,. Complaint of Discrimination (See instnlctio11'1 on revene) The 1igncd 11&11:m<:111 willliOt'Vc u tbc n:con!IICCil:lllll)' to mitialc m ioVCIIIp:tioa IIIII will ACT STirJEI\IENT: I. AUJHORITY· Tbc :audloricy 10 colhx:l 1hio inlllcmotic:Jn l'rom-42 U.S.C. Sc:diao 2000c-16; 29 CFR Sc:dionll614.106 ond 161-4.108. • BAND USB-Thio illfoonotion will bo UIICd 10 docutrl:nc the ond allcglckal ...~ llf a~- of dioaiminotion buc:d on"""" CXJlor, sc:c. (lncludinjl-"• wN rcligiaa. notiooll ori&~n. •• disobility p~ ~-e~ ~0_rru11f #I -·") .. 1J z • . , '· 1 8. What Com::ctivc Action Do You Want Tllkcn on Your CO!Ilplainl? e.ompld:u tee.v,q/ua.b~ c;.f" fJOYrt'r'7 N~ t01ncl C. of\ dq c)·~ o •.... 0 I Have Not C01111U:tcdan EEO COIIIUClcr ,20/0 l/!JC . .~J!L'tjJ{) ' •• NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT SUBJECf: NOTICE OF RIGHr TO FILE.A. DISCRIMrnATION COMPLAINT FROM: 8/13/2010 EEO C~unselor J.__ _ _ ____.t-------· DATE: TO: (Name of Person Counseled) This is to infonn you that ~ause the matter you brought to my attention has not been resolved to your satisfaction, you are ~ow entitled to file a discrimination complaint based on race, color, religion, sex, national origin, physical or mental handicap, age, sexual orientation an~or repris3.1 . .If you file.a complaint, it must be in writing, signed, and filed, in person or by mail within 15 calendar days after receipt of this notice. You will be provided a fonn (DOJ 201-A) for filing your complaint. If filed by mail, it must be done thfough the U.S. Post Office Department since the postmark is used to determine the date filed ..The.internal FBI mailing system is not acceptable. The complaint is to be filed with the FBI's Equal Employment Opporiunit,Y-officer at the ~. 1"-o.l following address: .. c:.::> a :::r Equal Employment Opportunity Officer Federal Bureau of Investigation . Room7901 935 Pennsylvania Avenue, Northwest Washington, D.C. 20535-0001 ~ ~·o: r. C.i:i "'lJ 1""1 N r:; U1 ~ u r:-? ::' ':1 n C": fT. ~ c ""\ The complaint must be specific and encompass only those matters discussed with me. If you retain an attorney or any other person to represent you, you and your representative must irilmediately notify the EEO Officer, in writing. You and/or your representative will receive a written notice of receipt of your discrimination complaint. Regarding your contacts with your representa~ve, ensure you comply with instructions in the Prohibited Communications form. .. ,, I, I Attachment No. 1 Note: Answer to question No. 7 of Form DOJ-201A (Complaint of Discrimination) The combination of a series of events and comments has led me to believe that I am a based on my national origin (Iran). I also believe that the fate of the continuation of my employment application process in Albany, N.Y. Field office was pre determined. victi~ of discrimination Job Announcement April 6, 2010. I received an e-mail froml....__ _ _ _ _ _ _ _ _ _ ___.!which stating the following. · "Thank you for visiting ~he ~telligence Community Virtual Career Fair on Tuesday, March 16th. The FBI currently has immediate openings and would like to review your resumes for considerations. Please submit your resume profile to the following Database no later than Friday, April ~ for consideration to our open vacancies." I did follow the instruction from the e-mail and submitted my application to the FBI database to be considered against the openings. April tO, 2010 I noticed an ad by an FBI recruiter on-line (Federalsoup.com) byl I !who was encouraging applicants W:itb s~ific skms to .rorward their resume to him to.be considered ag~nst op~ vacancies fo~ !positions. 1 I also forwarded my resume to._l_ _ _ _ ____. Application Process • (JOB INTERVIEW) Thursday, April29, 2010 at I 1:00AM in Virginia (in-person 'interview) The job interview went very well and during the interview, the interviewer told me FBI is in need of people with language skills and regional knowledge. She also mentioned that FBI is. interested to have· everyone on-board by the end of September before the end of the fiscal year and time is of essence. .I • • b er (CONDITIONAL JOB OFFER) Sat, May 1, 2010 ~I received a conditional job offer and accepted the o on sun, May 2, 2P 1ovia email. (PERSONAL SECURITY INTERVIEW (PSI)) Plattsburgh, N.Y. Tue, June 15, 2010 9:00AM 2 hours interview regarding m SF-86 application. The Agent took co ies of m current American ass ort Start of concern • (CREDIT REPORT PULL) Thursday, June 17, 2010 My credit report was pulled· by .Department of Justice prior to Polygraph session, possibly by Albany, N.Y. Field Office. · • Polygraph scheduled for June 22, 2010, cancelled by examiner and then resched1:1led by Albany FO for June 29, 2010. • (FIRST POLYGRAPH) June 29, ~01 0 11;00 AM The.first Polygraph process start~ and lasted for a period of approximately four hours ending with this Statement from the Exaniiner "I would like to thank you for being truthful with me today" and roceeded to direct me to finger prints and drug test with HR. assistant! _ . • ~ommented during the finger printing that "This is one of the h~ngest Polygraph that we had in a long time! But it's a good sign that she sent you for finger prints and drug test. Its definitely a good sign .(that you passed your Polygraph)" The HR. assistant! • The Security Guard commented upon leaving the building "This is one of the ·longest Polygraph that we have had in a long time. But in my experience, I can tell you that if you have had failed, there would have been no finger prints taken an~ no drug test done. She Oust would have walked you to the door" • (2 days after the first Polygraph) on July 1, 2010 Albany FO called to schedule to retest a portion of the Polygraph. • (SECOND POLYGRAPH) Wed, July 14,2010 at 1:00PM. On questiQning about why the second Polygraph, examiner's response was "D.C. says, you results came back "inconclusive" your brain pattern clearly shows· that you not even thinking of the questions" whe~ b6 .. .., " .. ,.~·if:· I • • e While examiner was preparing for the Polygr.aph session and before connecting me to the machine, the following accusations were made: . • Osaid) Your counter measures are not going to help you today! (I said) What counter measures?? I do not know even what they are! Osaid) The ones that you have been reading since the last time! . • Dsaid) ••• YesJ if you wanted to hurt this country, you would have done it by now. Then agairi (long pause) •••;. good (pause) ••••. Later. (what I understood was) that (although you ·have not done anything to hurt this country but maybe you are good to h~e yourself and after be hurting this country!) hiring by the FBI you will ~ ,,. b6 • c=Jsaid) Don't tell me this time like last time, that you are Hypoglycemic, and this time you took pain-killers (Advil) for twisting your ankle the day before! And this time you are in pain! • Osaid) How manyOare there? Are you always so teas,nt and nice? What happens when your masks falls? Bow many re we dealing with? • Osaid) We have bad people that we hired for the FBI, then after we found so many things about them! : ?:~"ft.' • · c=Jsaid) Some people are good all their lives and then something happens and they "snap"! . . After the first set of questions the machine was disconnected and the following comment was made ''you clearly reacted to one question 3 times!" • After an hour and half with two pages of notes and answering questions, after questions, I was told session was over. • 2· days later on July 16, 2010 Albany FO sent an unsigned letter, stating no further processing would be done on my employment application. • HR advised me to contact EEO Contacted FBI, EEO for assistance in understanding of, why the apparent focus of the Albany FO was to find any key factors, such as pulling my credit report before Polygraph session. to make a quick and simple rejection without the need of the Polygraph process. · .. - . . .,., .. 1', •, I .. ' After given the impression that Polygraph was a positive step with a follow-up with finger prints and drug test, it was obvious that a second Polygraph may change the result which could be used to finally make a rejection. When the Polygraph examiner, questions who you are and suggesting you were looking for the job to be in a position to hurt this country, it is clear in my mind that this person has a perspnal agenda which should not be tolerated in any viable organization. The specific details of this sequence of events are available upon request. · ·~ • ------------------------------------------------~--~~------------------------~ ~ · .f~denil Bure~u of lnvestigatio • Page 1 ofl FBijobs Home ~BI.gov · VltrN Jobs & Apply • How to Apply C..r~N~rPatha ·Special Agants • Professlonal Stan Recruiting Ewnu Student Center • College Recruting ·lntems!Xp Programs • Other Career qpportunllles FBIJobs.gov > Background Investigation > FBI Background lnvestlgaUon Process ' · ----""""'"'" ((~~ . .d-~::_1! --~'<:<~!.1pf·s Attar you receive a conditional FBI offer of employment, the next step is to begin the background investigation process. All candidatss must receive an FBI Tap Seaet Clearance before they can begin employment with the FBI. Once you have been instructed 1o do so, you will initiate the FBI background Investigation process by completing the appropriate FBI Background lnvestjgation J:lmM. Ufe@FBI -Who WaAra As soon as the FBI receives a fully complets set of background investigation farms (your Human Resources paint-of-rontact will provic:IG you with an address), the FBI will commence with your background Investigation. You will be contacted by the FBI office that is processing your baclq;Jround to schedule your interview, drug test, and ·polygraph examination. Th& pclypaph will ci'le<:k-t1'!4'· ·Meet Our People • Benaflts at the FBI Diveuity • Statls1!cs • Diversity Programs ·Testimonials ~.afa.llafyour~ori~ ~t.n:i'h n:eatiliJIItioll Fouua: In th!!!llitlOt U. . ·~ ti11t FBI will port'onn exten.lw rec:crde checlm (•.g., cntditc:tlecka, pollee rKC~rdar.:haclal, at;.), and FBI ~Will interview CliiTI!Int and former ooll!tagues, Background .·... lnw.tlgation • Disqualifiers • Drug Policy -PrOCII$$ -Fonns Find Out More -FAQ's ~ .... friends, ~1"111, etc, Please note that because of the thoroughness of the background investiga~on process,. it can take !'l9Veral months or more fD receive your FBI Top Secret Security 91earance. - Find Your Local Fklld 0tr1ca • FBI Reserve Service • Foai!Jnld CommetciBis A.ccessi?!!!tv I Pr!ytcy Po !ley I~ I Equal Opportynjty I QQJ I W. FBljobs.gov Ill an olllc:iallllte of tho U.S. Federal Gowrrmont, U.S. Dopartm1111t of Justice .http://WwW.fbijobs.gov/53.asp 8/23/2010 :r U.S. Department of Justice Complaint Adjudication Office Agency Complaint No.I DJ Number I I LlsiL (\1 :\ •_ r C:f I 1tCL.. (\ " I • ' 601 D Street, NW F i=' -t Q Af fA fF.lf!,ick Henry Building, Room A481 0 ~ ~V~shington, DC 20530 MAR 2 8 2012 Dear~~------------~ Rights of Appeal \ ~ First, you have the right to appeal any part of this~decision to the Equal Employment Opportunity Commission (EEjPc)1?' You. may do so by filing your appeal within 30 days of the dlj\te.P. you receive this decision. If you are represented by an ~ ~ attorney of record, the 30-day appeal period sha~l begin to ~n the day your attorney receives this decision. The appeal must be in writing. The Commission prefers that you use EEOC Form 573, Notice of Appeal/Petition, a copy of which is attached, to appeal this decision. The notice of appeal should be sent to the Director, Office of Federal Operations, EEOC, Post Office Box 77960, Washington, D.C. 20013, by mail, personal delivery, or facsimile. You .must also send a copy of your notice of appeal tol !Acting EEO Officer, Federal Bureau of Investigation, 935 Pennsylvania Avenue, NW, -Room 7901, Washington, DC 20535, '(202) 324-4128. You must state the date and method by which you sent the copy of your notice to tli agency's EEO Director either on, or attached to, the notice of appeal you mail to the EEOC. Second, you have the right to file a civil action in the appropriate United States District Court within 90 days of the date you receive this decision. In filing your federal complaint, you should name the Attorney General, Eric Holder Jr., as the defendant. Even if you appeal this decision to the EEOC, you still have the right to go to federal court. You may file a civil act$.5~ -i!Ct~~trPlili..ted ,St?-tes :71U,s~·~ourt within N 0 l.LtD- _,.,.,..-:..-- - .!'.;.......,....... .._ Ku CLOSE BY I ~ ..... .~, .L!cll--t.JJh CIVIC t. r:I"'l-0"\T p-·"'"" . . . . .,. Jl•.t' A~· f}"f,;< .. .f';t.:.;; ' ~,..... I 'I( b6 ':::::.tr' ;·~ \;. ~ \::)~ ,·'/ ~" ' 90 days of the day you receive the Commission's final decision on your appeal, or aft'er 180 days from the date you filed your appeal with the· Commission, if the Commission has not made a final decision by that time. If you cannot afford to file a civil action, you can ask the court to allow you to file the action at no cost to you. The court may also provide you· with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver of costs should be directed to your attorney or the District Court clerk. Sincerely, a;t--· Mark L. Gross Complaint Adjudication Officer cc: 2 U.S. Department of Justice Complaint Adjudicatiop Office Agency Complaint No. DJ Number! I b6 I 601 D Street, NW Patrick Henry Building, Room A4810 Washington, DC 20530 DEPARTMENT OF JUSTICE FI~AL MAR 2 8 2012 DECISION in the case of fv .· Federal Bureau of Investigation On August 23, 2010, complainant! I ~n applicant for a position filed an employment discrimination complaint against the ·Federal Bureau of Investigation (FBI) . Complainant claimed he was discriminated against based on.his national origin (Iranian) when on July 16, 2010, he was notified that there would be no further processing of ~is employment application. As relief, complainant seeks a complete reevaluation of his polygraph examination and/or an examination-by an unbiased polygraph examin~r. · I' \, Factual Background 1. Complainant•s allegations Complainant said that he applied for the \~-~----~~----~--~ position via an FBI employment database. Complainant interviewed for the position on April 29, 2010, in Virginia. Complainant said that the interviewer informed him that the FBI needed individuals with foreign language skills and regional knowledge. Complainant also.said that the interviewer "informed [him] that the FBI may not hire individuals from Iran" (Ex. 9 at 2) . 1 Complainant received a conditional offer of employment on May 1, 2010, "which was contingent upon results of a background investigation. Complainant accepted the_conditional offer the next day". (id. at 2-3). On June 15, 2010, an FBI Special Agent from the Pittsburgh office conducted a two-hour personal security interview based on compla.inant • s application. Complainant said ·that on June 29, 2010, Special Agent\ \ Albany Division, 1 "Ex. at " refers to exhibits in the record of investigation and their corresponding page number(s). b6 f'I . f' administered his polygraph examination. Complainant said that he "recall[edH lasked [him] a lot of questions (id. at 3). Complainant said that he "[felt] like he was already under suspicion and was required to defend [himself] (ibid). Complainant said that the polygraph examination "lasted approximately three and a half hours" (ibid) . Complainant said that after the examination concluded, j[thanked] him for being truthful and directed [him] to get [his] fingerprints and drug test completed" (id. at 3-4) . Complainant said that because of the duration of the~aminationl l. I I he felt "light headed" after the examlnatlonid. at 11 11 I 4) . ' Complainant said that the Albany Division contacted him on July 1 1 2010 1 and told him that he would have to take a second polygraph examination on July 14, 2010. Complainant said that I !also administered the second polygraph examination 11 (id. at 4). Complainant said thatl jtold him that in reviewing the first examination, "FBI Headquarters determined that the results were inconclusive and noted that [complainant 1 s] brain pattern showed.signs that [complainant) was not thinking of the questions" (ibid). Complainant said thatl !told him before beginning· the second examination that "countermeasures would not help [him]" (ibid) . Complainant said that also told him "not to state that [he] was as he had. done duri~g t e pr~vlous examlna lOn ~(~i~b-l~.d~)~.--C~o-m-p~1-a~i-n-a~nt said that I !implied that [complainant] could be a mole who would harm this country after [he] was hired 11 (ibid) . Complainant said that he "believe [·d] I Iset the stage for failure even befor~ she began the second polygraph examination// (id. at 4-5). Complainant recalled that he was asked "six or seven questions all dealing with National Security, and then the session was ended" (id. at 5) . Complainant said that after the examination ended; I !informed [complainant] that [he] clearly showed deception on the.question 'Have you ever been a member of a terrorist group? 111 (ibid). Complainant said that he answered 1 "No" (ibid) . Compla~t added that he also explained to (ibid) . he had "never been a member of any groups" said Complainant sal (ibid) . Complainant that~'--------------------------------------------------------~ 2 bo b6 ( /(ibid) . Comp~ainant said that his knowledge that th~s group r \"may have -caused an abnormal reaction with simply 'yes' or 'no' answers" (ibid) . Complainant said that he "responded 'No' because at that time· nor was complainant] ever a member" (ibid). Complainant sa~d that he spent "the next two hours discussing the above point with! I (ibid). Complainant said that "it was during this discussion that I !indicated the pu~pose of that line of questions was to clarify the reasons for any abnormal readings indicated in polygraph results for her management" (ibid): Complainant said that he "further under[stood] that the ( \ and [complainant has] never had any affiliation with .this group" (id. at 6) . Complainant received a letter from the Albany Division on July 16, 2010, informing him that his application would not· be· processed further. Complainant said that on July 22, 2010, he sent a letter to.Polygraph Unit Chief I jrequesting that his polygraph results be reevaluated·. Complainant said that AlQany Division Section Chief! lsent him a letter on October 18, 2010, stating that complainant's request for a reevaluation-of his polygraph results had been rejected, and there was no further recour.se. · Complainant said that he believed that his "integrity as a U.S. citizen is being questioned based on a personal agenda and not facts" (ibid) . Countering alleged comment implying that complainant rna be a. "was not mentioned in any document" (ibid) . 2. FB'I Witnesses Polygraph Unit Chief I Iexplained that complainant was administered a full-scope polygraph examination copsisting of two separate areas of testing: national security matters and· suitability/lifestyle issues. "I I said that "the relevant questions on the applicant polygraph examinat_ion are the same. for all candidates" (~). I !explained that "polygraph ex?tminations are based on the concept that when an 3 / > I 1 ' I . ' . .~ individual tells a lie, it creates stress [that] manifests itself in physiological changes which cannot be controlled" (id. at 3). I lsaid that the "polygraph instrument monitors and charts changes in heart rate and blood pressure,· respiration, and perspiration, [ahd that] polygraph exami.ners study anq evaluate the phys~ological changes from homeostasis (baseline)" (ibid). I lsaid that after complainant's first polygraph examination, Special Agentl !"assessed the results as No Deception Indicated (NDI) (ibid). said thatl lthen submitted the results and her conclusion to Re ional Polygraph Program Manager Supervisory Special Agent for "quality control (QC) review" (ibid) . aid that FBI "security practices dictate that a blind QC is conducted of all polygraph examinations to ensure accuracy and defensibi.lity of the results" (ibid) . I I said that the QC involved con.ducting an independent analysis and assessment of the results "before seeing the examiner's conclusions 11 (ibid). I jadded that the "Regionq.l Polygraph Program Manager does not have any knowledge of the examinee's protected class status, including national origin information" (id. at 3-4) . I I said that with respect to the QC review of complainant's polygraph examination, I I assessed the results as inconclusive and subsequently reversed l lNOI call (id. at 4). I I said that he subsequently reviewed the qocumentation associated with complainant's first polygraph examination, andl !agreed with~~----------~ assessment that the results were inconclusive. I 11 I 11 I jsaid that "all FBI applicants whose polygraph results are inconclusive are automatically rescheduled for retesting (id. at 4). l jsaid the results of complainant's second polygraph examination "were indicative of deception with timely, clear responses to. the terrorism guestion 11 (ibid). I I said that during the post-test discussion, complainant "provided addittonal information, previously unknown, whic~ [was] clearly relevant to the topic of terrorism support and corroborated the deceptive test results" (ibid). I lsaid that I !documented ther:-------. additional information in the po1ygraph report" (ibid). said thatl lalso concluded that the results of ~------~ complainant's second polygraph examination indicated deception. I lnoted that part .of the QC review process involved reviewing the pre-/post- test interview summaries "in order to determine a possible reason for the test result" (Ex. lOA at 3). I !said that he reviewed all the relevant documents ~nd 11 I 4 Ij' ' • . ' . I ,~ ., agreed wit~~----~landl lthat the test results indicated deception. ~------~ b6 ~------~lsaid that on July 16, 2010, the FBI sent complainant a computer-generated letter notifying him that it would not proces~ further his employment application. I lsaid that complainant 'sent a letter objecting to the polygraph results and requesting a reevaluation. I lsaid that "upon review of the letter and all re·levant documents, [complainant's] case did not warrant reevaluation and was subsequently denied" (id. a·t 5) . ~-------'1 said that "the Deception Indicated con~lusion reached on [complainant's] polygraph examination was based solely on the technical analysis of his ~hysioloyical reactions to ~he questions presented" (Ex. 10 at 6), l Jalso noted that "based on the failed polygraph examination and in accordance with FBI corporate poi icy, ... further processing of [complainant's] employment application was strictly prohibited" (ibid). I I "firmly den[ied] that [complainant's] national origin had any bearing on the decision that there would be no further processing of his employment ·application" (ibid) . _ Special Agentl jsaid that there were three phases to polygraph examinations: 1) pre-test, 2) test, and 3) posttest. I !recalled that during the pre-test phase for the polygraph.she administered to' complainant· on June 29, 2010, she discussed with. complainant "national security and suitability issues including prior drug usage, involvement in serious crime, and terrorism" (Ex. 11 at 3). I lsaid that "with regard to the terrorism question... [complainant] res onded that in his outh he FB~ (ibid) . I !said that during the actual polygrap~ portion of the examination, she "believed [complainant., s] responses were forthright and [she] had no cause for concern" (ibid) . ~~;;;..___..,1 said that during the post-test phase, complainant "elaborated on the issues that had been previously discussed" (ibid) . · I Isaid that she "believe[d] that [complainant] is a social talker with whom [she] had established good rapport" (ibid) . said that complainant told her hours, 5 standard b6 time frame for polygraph examinations 11 (ibid). I ldid "not recall any unusual circumstances occurring during any phase of the examination' process" (ibid) . b6 I lsaid that her initial assessment of the polygraph examination was that complainant had passed it and that "to minimize additional travel," she referred complainant "to the next step in the pre-employment screening process" (id. at 4). ~----~lsaid that she then submitted the polygraph results to the Polygra7h Unit for a QC review as was the standard operating procedure. l lsaid that the QC polygraph expert and supervisor .deemed complainant's polygraph results to be inconclusive, and complainant was offered a second polygraph examinatlon. r-----1 said that "most applicants are concerned or disappointed~hey receive inconclusive results. on a polygraph examination" (ibid) . said that "some individua~s have been known to obtai_n__ information from publically available sources regarding certain countermeasures that can be used to defeat polygraph examinations" .(ibid) . I I said that "in order t.o address this issue, ...examinees are provided a standard warning against the use of countermeasures during .the test" (ibid). I I said that she gave complainant this warning to complainant before both examinations. I Isaid that she "did not accuse... []or imply that there was a possibility of [complainant] being a mole who could harm this country once h~ was hireq 11 (id. at 5) . I I I jsaid that the second polygraph examination "focused on national security and suitability issues" (ibid) . !said that during the polygraph phase of the second examination, complainant "displayed a strong reaction to the terrorism question" (.ibid) . I lsaid that "based on [complainant's] reaction," she conclude~ that complainant "failed the second polygraph examination 11 (ibid) . l lsaid that during the post-test phase, complainant "elaborated on the terrorism issue and his reaction 11 (ibid) . I I said that comr:>_lainant "ex.2._lained that in his youth, \ (ibid) . L I said that comp.LaJ.nan_I·J 0 (ibid) . 1 b6 jsaid that complainant. also explaJ.ned that atter the f~~~~--~~~~----~~~--~~/ (ibid) . J I said that complainant said that he ~----------------------------------------~/ 6 (ibid). I lsaid that "the information [complainant] provided during the post-test phase did not alter the overall assessment 11 (ibid) . b6 ~--~'said that she forwarded the results of the second polygraph examination to the Polygraph Unit for a QC review. lsaid that her assessment that complainant had failed the L..e_x_a-m"""i.....nation were upheld. I I said that "the outcome of the polygr.aph examination was based solely on [complainant's] reaction to the questions posed him 11 (id. at 6). I I said that as a result, complainant's application for employment was not processed further. ~~~ladded that on April 25, 2010, she conducted a polygraph examination for another applicant of Iranian national origin. I lsaid that she determined that this applicant passed the polygraph examination, and her ~ssessment was subsequently confirmed by the QC review. · Polygraph Unit Regional Program Man~gerl lsaid that he conducted a "blind review 11 of complainant's polygraph exa~ination as he does for all QC reviews, meaning that he did not know the results of the initial assessor before conducting his review (Ex. 12 at 3) . said that after conducting the QC review, his assessment was that complainant's polygraph was inconclusive, which was diffe~ent froml conclusion of NDI. jsaid that based on this discre~ancy, he "requested a second opinion from SsAI ~ I a Polygraph Examiner at FBI Headquarters// (id. at 4) • said that I I confirmed his assessment, and the final determination was that complainant • s polygr.aph examination was inconclusive. I I I b6 b6 I I . I I said that he also performed .a QC review of complainant's second polygraph examination and compared the results withl la~sessment. I said that "this time our results were consistent·with both of us assessing the call as 'indicative of deception' with timely, clear responses to the relevarit issues on the exam 11 (id. at 5) . ~aid that in "the post-test discussion with I I [complainant] made admissions and provided more detail on his reaction to the relevant questions// (ibid). said that he "believe[d] [complainant's] admissions expla1n h1s reaction to these questions" (ibid) . · I I I I b6 L..-_ _ ___.1 said that "the conclusions ... reached during [his] QC reviews [were] based solely on a technical analysis of [complainant•s] reactions to the questions posed to him" (id. at 6). L I also noted that "at no time was [complainant•s] protecteq class status, to include his national origin, considered during QC review of [complainant•s] polygraph_ examinations" (ibid) . I I I I Professional S~pport Cl_earance Unit Chief said· that "on average, approximately twenty-five percent of applicants are disqualified based on the results of their polygraph examination, almost all due to Deceptiqn Ind~c~ted" (Ex. 13 at 5). Analysis Complainant claimed that he was discriminated against based on his national origin when the.FBI advised him tqat his application for employment with the Bureau. would not be processed further. Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-16, prohibits a federal employer from discriminating against employees based on national origin. As part of the hiring process, the FBI requires potential employees to take and pass a polygraph examination. In this case, the Sp7cial Age~~a~m~nistered a polygraph exam~nation to complaJ.nant, andc===J inJ.tJ.ally assessed that complaJ.nant h_ad passed the examination. Upon further review, which was in accordance with established FBI procedures and policies, Polygraph Unit Regional Program Manager! !concluded that the results of complainant•s polygraph ex~mination were inconclusive as opposed to not indicating deception. The FBI offered, and complainan~ acceJted, an opportunity to take another polygraph examination. testified that during this examination, complainant•s response to a question relating to terrorism indicated deception; Bothl I and complainant acknowledged tbat there was some discussion during the post-test ·phase of the second polygraph examination about comp~ainant•s II b6 I While _j I· rI . I· . their testimonies regarding this discu$sion differed considerably, ltestified that the information complainant provided during the post-test discussion did not alter her overall assessment that complainant•s response to the terrorism question indicated deception. ltestified that he ~greed withl assessment that complainant's responses indicated deception during the second polygraph. Polygraph Unit Chief I I reviewed both I land assessments of complainant•s second polylraph and agreed with their conclusions of Deception Indicated. _ and I !denied that complainant • s national origin played any role in their conclusions about his polygraph examination. They each testified that the Deception Indicated conclusion reached ·on complainant•s polygraph examination was based solely on the technical analysis of his ~hysiological reactions to the questions presented. testified that FBI policy prohibited the Bureau from continuing to process complainant•s application once complainant failed the polygraph examination. l I I I II I b6 I I I The record did not contain any evidence other than complainant's own testimony to support complainant's allegations that he was discriminated against based on his national origin. Complainant complained that Special Agentl implied that he could be a "mole" working to harm the United States. denied ever making or implying any such thing, and the record did not contain any supporting evidence that she had done so. The record evidence established that the FBI dete.rmined that complainant's responses during a portion of the required pre-employment polygraph examination indicated deception. Specifically, complainant's responses to a question or questions relating to the issue of terrorism were deemed indicative of deception. FBI policy states that "a lack of cahdor displayed by an applicant during ANY PHASE OF THEIR processing warrants their disqualification" (emphasis in original) (Ex. 30, Manual of Investigative Operations and Guidelines, Section 67-82.1(4)). I I I From the FBI's perspective, complainant's polygraph examination indicated that complainant was deceptive about the terrorism issue. · The FBI concluded that complainant was being · less than candid and truthful. As noted above, the FBI's internal guidelines provide for disqualification of applicants who display a lack of candor. The record evidence failed to show any irregularities with respect to how the FBI handled complainant's polygraph examinations or it~ decision to rescind its conditional 9 b6 ,-, l/,t1 ,. lr~." ' ~ offer of employment. The FBI's actions ih this ·case did not raise any inference of discrimination . . The record contained no evidence of discriminatory animus based on complainant's national origin on the part of any FBI officials involved in either the administration of the polygraph examinations, the analysis of the results of those examinations, or the decision to rescind the conditional offer of employment. Finally, the record did not contain any evidence to suggest that the legitimate, nondiscriminatory reasons FBI officials proffered for their actions in this case were pret~xt for illegal discrimination. Decision For the foregoing ·reasons, the record evidence fails to support complainant's claims that the FBI discriminated against him based on his national origin when on July 16, 2010, he was notified that there would be no·further processing of his employment application. 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Do not u:r:lud~ ~pcl)W(: tS.SU<;:S (;( IIICitl!T~ ~ lblr·~.;ou h.~l'~ r..•); dt~cussd wit:.~ )'-l)Uf EEO ();•;;-,,,>;JQ:', (l-(.o.:.t rr.;~y ('l::nli.~c )'ll~~Jlatl)<.._,r r.al G'lltxhu sii,~l ~fpa~r i{'J(l:: nrr.P rr.:m: SJklC~ ••' J ' -; c< ·, ""; "" t "(')~\~a.~!.\.~ o·C,~,"'-> e.~ b" o;e'a. i\..t.. o"' .,...,~ '(" t U e"'(: e. , I•Jplaicx? L ~ \( <... ;-9 C\ {'\, e:, 4 \ (\.\- P ~?' c.·,uJ- c. "-e..v~e) · t.,..... ("'\A. j_ b6 :lxr:· ; Jl. f!?..ST ·: '( ~~·~ f·,..,.: ·r v.::·:: 1 ~~(} ~JFF::. :·. loG' ! ,.) U~.~. ~11ilit (UIII(.':..Iit•..\· t.:.i,wr.h D:'.~ ':."t;,.}J... Ofill'..ECEIYIOF NOTICE OF FINAL i; D:\TI:. INT:.:.Rv JEW Wlli-l w.} (.'O~INSELCJR. 10& 2.5 · ob Continuation on questions 7 I I am an applicant for al I was discr minated based on my race, religion and national ongm. lhe mterviewer asked if I was .raised in Hebrew faith. and I am Jewish when I said yes, as a result he was discriminatory against me .First he is not supposed to asked about my religion since I did not volunteer the information. Secondly I am not subject to discrimination and disrespect based on where I was born, my ethnic back ground and my reiigion. · I believe that interviewer has a track record of discriminating against minority groups. I would like an internal investigation takes place against this individual and official charges to be filled against him. I would like to be given a fair chance to continue with my employment Regardless I would continue with my complaint against the interviewer because I believe that ifi don't, he will continue his discriminatory practices against other minority applicants. It is a shame that this individual abused the power and authority given to him by the . federal government and discriminates based on the race, religion, and national origin. He violated the Title VII of civil rights acts which prohibits employment discrimination based on the race, religion, and national origin. b6 .. U.S. Department of Justice Complaint Adjudication Office ; ... :~IVED Agency Complaint Numberl DJ Number L...-------' I I iBifi FEB I q P J:t. 2· b6 Of5P ffifls.ffFufi:c£.-(JeM, M1 K~ Patrick Hem)' Building, Suite 5300 Washington, DC 20530 FEr 1 8 2010 Dearl~-._ _ _ _____. This is in reference to the complaint of employment discrimination that you filed against the Federal Bureau of Investigation. Under the Department of Justice 1 s equal employment opportunity regulations 1 the Complaint Adjudication Officer renders the final Department of Justice -·decision on your complaint. Enclosed is the final Department of Justice decision. Your rights of appeal are out.lined below. Rights of Appeal First/ you have the right to appeal any part of this decision to the Equal Employment Opportunity Commission (EEOC) . You may do so by filtng your appeal within 30 days of the date you receive this decision. If you are represented by an attorney of record 1 the 30-day appeal period shall begin to run the day your attorney receives this decision. The appeal must be in writing. The Commission prefers that you use EEOC Form 573· 1 Notice of Appeal/Petition/ a copy of which is attached/ to appeal this decision. The notice of appeal should be sent to the Director/ Office of Federal Operations 1 EEOC 1 Post Office Box 19848/ Washington 1 D.C . . 20036 1 by mail 1 personal. delivery 1 or f:cBj m~~l e vall ,ust also send a copy of your notice of appeal to -~ EEO Officer/ Federal Bureau of Investigation/ 1 ran Pennsylvania Ave. 1 NW 1 Room 7901 1 Washington/ DC 20535. You must state the date and method by which you sent t_he copy of your notice to the· agency•s EEO Officer either on 1 or attached to/ the notice of appeal yo~ mai) t: I __ _ :be EE:c Second/ you have the r1gh[ ·Eo I1Ie a c:r.vJ.I actJ.on J.n the 1.__ __,/ appropriate United States District Court within 90 days of the ·date you receive this decision. In···filing your federal complaint/ you should name the Attorney General 1 Eric H. Holder 1 Jr./ as the defendant. Even if you appeal this decision to the EEOC 1 you still have the right to go to federal court. You may file a civil action in the United States District Court within 90 ~Ei ··~CKLBR TC -:-T~-:,~.~3 B~~ b~·J:W' IF NO Af f EA.L ( Jl:·, CIVl C ~'·J..1.:110 tl Fll.."EP. ~) b6 -2- days of the day you receive the Commission's final decision on your appeal, or after iso days from the date ~ou filed your appeal with the Commission, if the Commission has not made a final decision by that time. If you cannot afford to file a civil action, you can ask the court to allow you to file the action at no cost to you. The court may also provide you with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver of costs should be directed to your attorney or the District Court clerk. Sincerely, q~ Complaint Adjudication Officer CC: Tr:, ·;r.z !'' ()TJCE OF .~. PPE.~.L'P£TITT 00: 'CQL'AL E:.:PLC•Y~>!f~,·T GP?Gl\TL'i.,'/TY CG;,[,\fJ;;:.<:JC:'-1 Cf'FJ CE OF F'EDCRA L GPEV. TlONS P 0 Ben l9S..JS V.":!siangLOn. DC. :!0Cj6 c.~rnpi~Jn:.nr·~ n~ Hornc.'muiling CH)'. St~lc. (L:~.sr me FtrSl. ivl I.) I I ~dor~ss: !.IF' C.1de: D~)'IJinC Td~piH.HIC ti !,Wirh arc~ C:CJuc): E-mail ;tddrt:$S (If any): ~.llorn!.:l'IR ,.l.ttorn~y eprcscnUJIJVC lnfurm :Jtiun (if ::mvl: I name: 1'-lun·Allornc:y R:::pre:5c:ncative name:·: ,;..(.]dress·: I Cicy, State, ZfP C0de: Tekphonc: number (if applicabld: . . E-mail address (if nny): Gencru.l Informntion: · .. Harne of rhe agt:ncy being · chnrg~d with· discrimination: ·. :ld!mdfy. the Agenc·y's.c:omplainr number: Loca.tion of thr: duty station or loc::l! f'acility in which the complaint arose:: - H.us a nnuJ :lCtiqn been taken by the age:ncy, Jn A rbmator, FLRA, or MSP·B on this complaint? O'Y~:s Hn ~ ·~ OIHJ c:•; ',lU n w11n c: ... il OJt:uon ll~:wsu!lj b~:::n [i!:::.i thn ·~om pLaint'! \I(;';' ICE. P:t:~U: :JI!~t:h 10 to an:;Jcll u 0No 0This uppt:al Has a complamt tu:~n fil::d on chi~ same maw:~ with the EECJC, ~ag~ncy, or through ~ny •Hh~r a.dmini~traLive ur ~ollecuve: bar g::un1ng proc::.dures? (R::mt:rnb~r Dau: Rt:•;r:ived wpy J ~ll~gcs u brt:ach M a ~e:uit ~lt::nt ~gr::emc:nt 0No 0'' . . · I~" r lnth~3te tht ag~m:y ur JHIJt:ei.lurt. c.; om pin in LilitH.: l:ct number, anti attach a ,;opy. ii appropnat~) 0No I rl Yt~ l.~.t~ach llf the ::n·il ;JCl iun fiJ C.:d I nr.:JI de[iSJun trr urrler (rom wni:.:h :'OU ::.n: ~pp:::;,ling. E;, lltar·ng Wil~ rt!JU:~ttil :'inal urutr :nd :.t ~op~ ·Jftiu: :::=:oc :·\tlm 1 nJ:itr~tivt' Juug~ £ d~~is1un .:.. ny ..:urr.n;::nt~ rJ: o~;'=:' :r. ~UCOVf' I}; ~r.l!: ':lu-p~JJ :,..~ ~~Z.7 ·~t :i!::G '.VI!H rne :_=:_oc :n~ ·,••Hr; :nt r:g!:n~:. wg hili 2(: t!:,\'E ,,: :nt ·~a::: :01!. ~DD~:JI ·::. ··:1!:~ --:-h: .:r.:-:: :i.~ :.op:;::-:.1 ,s ·~i::c: ~:. ·.n'= ~=- 1-~ :jr, .vn1t;.r. :: .s ;,o:.Lrr,~r::=c r.::.:nc ... t:;v~ .. :!~. ur :-::..;..!::c .c. :r.c £-.:.:;c :1: .fl: pi::!~t .Jt::!::n:.: .:no:: :1-';1,0'' tll' !h~ ~ •;op_,. ~i( ~nt: ~~r;nc:,·~ ..... -.c... .. .. ......_...... ......... .. . . .... . ... L.. ~ ·-::.- ·. -:::: U.S. Departn~..,. f Justice Complaint Adjudication Office Agency Complaint No. DJ Number I I I b6 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Ste. 5300 DEPARTMENT OF JUSTICE FINAL DECISION in the matter of !v. Federal Bureau of Investigation I I On September 11, 2006, complainant filed an employment discrimination complaint against the FBI. The issue the FBI accepted for investigation was whether complainant was discriminated against based on his race (white), national origin (Iranian), and religion (Jewish) when, on July 31, 2006, he learned that he was denied an opportunity to take a second polygraph examination. As relief, complainant requests a position! lwith the FBI, exped~ processing of his a llcation, disciplinary action jga,nst L_jpolygrapher and second polygraphs for applicants who have ~f~a-l~.l~e-d~~d-u_e__t_o~~~~~~actions. This office received this file on July 10, 2008. This case raises claims of discrimination based on race, religion, and national origin. Section 717 of Title VII of .th~ Civil Rights Act of 1964, as amended, makes it unlawful for a federal employer to discriminate against an applicant because of that person's raqe, religion, or national origin. 42 U.S.C. §2000e-16. Facts I I Complainant, took a poly~h examination as part of the application process to become anL__J He failed the polygraph according to FBI standards and the FBI rescinded his conditional offer of employment. He requested a second polygraph, which request was denied. Complainant alleges that the polygraph was intentionally misapplied by I I who complainant claims commented on his religion and natio~al origin in an inappropriate way during the polygraph process. !denied making any improper comments, and insisted ·that.....,._h_e__,f_o...,.1~"'"1r--lowed all. FBI regulations concerning complainant's polygraph. b6 -2- Other FBI officials confirmed the accuracy of the polygraph reading and that FBI policy rarely allows a second polygraph under the circumstances here. Specifically, complainant failed questions having to do with espionage. According to FBI officials, it is rare that someone who fails those questions is afforded a retest. In addition, complainant had trouble with the other questions on the test, and failed to fill out another form properly that concerned residences and foreign travel. A. Complainant's Allegations In December 2004, complainant applied for anr;=iposition with the FBI through theirl __ Field Office. (Ex. 9, p. 2). Complainant passed Phase 1 of the application . process and moved on t.o Phase 2, which required a polygraph. By that time. complainant had moved tol and reported to ·thel !Field Office on May 11, 2006, for fils polygraph. ( Id.) b6 I Polygraph examiner! lcame to the lobby and escorted complainant to the polygraph examination room. ("Ex. 9, p. 3). After asking several background questions, including whether complainant was born in Iran, !asked whether complainant was raised in the ."Hebrew faith." (Id.) Complainant said he thought it was an inappropriate question. also asked complainant, in what complainant described as a "derisive" tone, when he immigrated to the United States. (rd .. ) asked several questions about intelligence agencies, including Mossad, and complainant believes! lwas implying that complain~nt was a Mossad agent trying to infiltrate the FBI. (Ex. 9, pp .. - 3- I I I I b6 I 0 4) • Complainant saidl lalso asked complainant whether he drank. When complainant replled that he did during Christmas, !asked why complainant would drink during Christmas if he was Jewish. (Ex. 9, p. 4). I I lthen began the polygraph and attached, then reattached, the equipment several times during the examination. (Id.). !eventually removed the equipment for the last time, made a telephone call, and left comrlainant in the room for 15-20 minutes. When he returned, _asked, "So you have never had any encounter with anyone in a foreign intelligence agency?" Complainant responded, "no·:;, (Ex. 9, p. 5). continued to press complaina~n answers concerning foreign intelligence, and -~~entually t9ld complainant that he did not answer the foreign intel lgence questions truthfully. (Ex. I I I 9, p. 6). I b6 -3- In May 2006, complainant received a phone call froml ~--~~lin FBI Human Resources, who told him he had failed the polygraph and needed to request a retest. Complainant did so the next day. (Id.). 'In May or June 2006, complainant received a letter from the FBI rescinding his conditional offer of employment. (Id.). In July 2006, he received a letter stating th~t his request for a retest had been denied. (Ex. 9, pp. 6-7). B. bo Management's Response I I SA stated that there are two portlons of the polygraph test; 1) Series I - a counterintelligence (CI) series, and, 2) Series II - a drug and completeness of the application series. The CI series tests truthfulness concerning issues pertaining to espionage. (Ex. 10, p. 2) . I !explained that he .goes through an extensive prepolygrafh interview with each applicant. During that interview, I _covers a number of topics having to do with how the applicant is going to respond on the polygraph. (Ex. 10, pp. 35). I I then conducts the examination. Once finished, he makes an evaluation and decides whether a further interview is required. (Ex. 10, p. 6). I !conducted the polygraph of complainant on May 11, 2006. He sald he followed the procedures outlined abQve. Upon completion of the CI series, he said,. it appeared that complainant had been deceptive. (Ex. 10·, p. 7). I said he explained to complainant that complainant was havlng probiems-· with the questions, and that I I needed to interview him further. It was during this interview t~at complaipant volunteered that he was Jewish. I Jclaimed to have had "no knowledge that he (-complainant) was Jewish" prior -to complainant's statement. (Ex. 10, p. 8). I I asked complainant whether, in any of his travels, which were extensive, he may have .met a representative of a foreign embassy or a foreign intelligence organization. According tol complainant said he did not: (Id.). I I I !asserted that he behaved toward complainant the same way he behaved toward all applicants. He did mention Mossad to complainant, as he typically discusses foreign intelligence services with applicants. He denied-·inanipulating the polygraph in any way. (Ex. 10, p. 9). bE -4- C. Other witnesses Supervisory Special Agent in the polygraph unit at FBI Headquarters, said that examiners regularly adjust the polygraph machine to improve the quality of the tracings or to better position them on the examinee's body. (Ex. 11, p. 3). I I said he made an independent review of complainant's test and found that the Series I answers were deceptive and the Series II questions were inconclusive. (Ex. 11, pp . 3 - 4 . ) Unit Chief, Personnel Security ~djudication Section/Applicant Adjudication Unit, explained that if an applicant requests a retest, the request is sent to- her unit. The request is then reviewed by AAU. (Ex. 13, p. 3). The decision not to retest complainant was made after review of all relevant materials. I lstated that it is more difficult to get a retest when Series I answers have been found to be deceptive. (Id.). l Supervisory Special Agent who was assigL.n_e_d..,......,...t-o___,.t....h_e_s=-e-c_u_r~i:-:t-y--D=-'l'"i--'vision at FBI Headquarters, had the authority to grant another polygraph. She said it is very rare that a retest is granted when a person fails the Series I questions. (Ex. 14, p. 3). Further, based on a review of complainant's lack of admissions, the fact that he had not been entirely accurate on another form regarding foreign travel and residences, and the fact that he had difficulty with the Series II questions, she determined that the chances he would pass a second test were unlikely, and thus denied his request for a ~ second examination. (Id.) 2. Analysis Title VII requires that u[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . ", . be made free from any discrimination based on race, religion, or national origin." 42 U.S.C. § 2060e-1~(a). Since, in this .case, there is no direct evidence of discrimination in the record, such as slurs or any ~ther evidenc~ that, if believed, would require a conclusion that FBI officials' actions were motivated by complainant's race, religion, or national origin, this case must be analyzed to see if there is indirect evidence of discrimination. See Price v. Federal Express Corp., 283 F.3d 715, 720 (5th Cir. 2002), citing McDonnell Douglas Corp. v. Green, 411 u.s. 792, 802-0S (1973). The focus of the analysis is whether the record demonstrates that FBI b6 -5- u.s. A. 502, 506 (1993). Discrimination Claims Management officials articulated legitimate, nondiscriminatory reasons for denying the second polygraph. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-256 (1981). Specifically, ·management has poiQted to complainant's polygraph failure and FBI policies concerning failures as justification for the actions they took. Those policies generally do not provide for a retest when a person fails the Series I questions. Further, I !pointed to complainant's failure to properly fill out another form as additional justification for denying a second polygraph. b6 With regard to his racial discrimination claim, the record has·produced no evidence that he was subjected to discriminatory treatment because he was white. In fact, other thanl I race being different from complainant's! complainant has pointed to no factor that would suggest! or anyone else discriminated against him because. he was white. With regard to his religion, the only evidence complainant has produced is the alleged statement 'byl !about "the Hebrew faith.n !denied making the statement. In these circumstances, in a Title VII case, the burden of proof remains at all times with the complainant. See~ Fallon v. State of Illinois, 882 F.2d 1206 (7th Cir. 1989) i St. Mary•s Honor Center v. Hicks, 509 U.S. 502, 507 (1993). R~gardless, even if~l------~ knew complainant was Jewish, and did make the statement abou·tcomplainant being Jewish, a mere reference to a person's religious background does not suff.ice to impute religious animus sufficient to implicate Title VII. I · Finally, with regard to national origin the only acts complainant could point to were questions by1 labout complainant's national origin. Questioning a candidate for anc=J position about his national origin, travels, etc., is within the realm of reasonable inquiries for such a sensitive position, as the executive branch is given considerable deference in matters involving national security, including the hiring ofl See~ Molerio v. F.B.I., 749 F.2d 815 (D.C. Cir. 1h9~8~4~)-.------~ b6 · -6- In sum, given the totality of the record, there is insufficient evidence to suggest that management's explanations for not providing a second polygraph were pretext for some other agenda, and there is insufficient evidence that complainant was singled out for adverse treatment because he was white, Jewish, and Iranian by birth. Rel is denied. Mark L. Gross Complaint Adj~dication Officer Attorney Complaint Adjudication()ffice 'I --\. iI I i Com)!!aint of Discrimination I ~eh,~~~~~~) CY ACTS'£ A're.~ek"T: I. IUJTHORITY-Tbc IU!hority 10 collect Ibis infonnation is lrom.ol2 U.S.C~ sJtionlOOOe-16;l9CFRScctiom 16IUOhno:l1614.101. 2. PURPOSE A~ll USE;Thik iafllmlllioG wm be used to documcnllhe issues Md alloslllions oh coq>jaina ofdioerimimlicol based on race, color.'""' (in~ se•ual haritosmcut), rclllJionJ naliou!J oriP, ..,. disabilily (pbyJical or menial), sexual oricntatiolt orr-.,n..i. i I 1\ 'J4?tii?~~~Swm ' ~~al. if~l)!.'ll-~.~Cjllfl pnwl_~Drn1C0111111isaico2. Failutt to furnish this idfomiAiion wiQ I'QIIk in !he complaint being ~umed without acti1111. 2. Your Teh:phom: Number (including area code) I nr l>not Homci I J I .r-..:a.... 4.C........,urrel.ii.Wnto..l·W~or.a..k,~;~Alo~o~~o~~. \ \. ~ A. Name ofOffice!whieh You Bclievt: DiS~Jriminatcd Against You. Where You A. I wor~; I B. Street Address br0mce : ; i ~boo! !£.Prd f5q l~~ofL Or. l}J 1\\.ho,f"'f\lu l \ y'\'\() ~~' '-_4\.1 5. Date on Which Must R=t I J Gl 6. Check Below Why You Believe You Were DiscriminBLt:d Against? ;ii1;;, o ! I~ iI I I I 1.' Alleged oiJri1it'1n Took Place 1'1· 0 I City, State and Zip Code C. City, State and ZiP, Code ~ohth J ·i b6 Work_,_~"-----------.-.....--_, I I 3. Which tr'cpartment'of Justice Office Do You Believe Discrimlnat~:d ~g~lnt You? rfc< ~: ): l!!lREfrsf".or ~~IJii.tsubcllissioa oflhis infonnatiooos Mo\NDATORY. 1. Complainant'ls lull Name _I C:tr....r Aoitir,.u ' pc aijbc nccoswy to indicate an invc:stigarion will ~~ put of tfi complaint file during the in•-clligaaion; hwina. if any: llljudicatiocl: !I . -o N I II 0 \~~-~ o St:iml Ociottatiort ' o Race or Color (Give Race or Color) - - - - - - - o Religion (Give Religion) - - - - - - - - - - Sex (Give Sex) o Male o female o Sexual Harassment o Age (Give Age) . p/National Origin (Give National Origln) 7~ r\u \ o Disability o Physical o MentaL ..,, M [-:"1 =ri c Parental StatuS: ~~ lq < - c o R9Pfisal ""0 0 -F. fil _::, c Cla'iS Complaint I were 7. Explain how yo~ disaiminatcd against (Treated differently from other emplo.vees or applicants) Because of Your Race, Color, Religion} ~x,~Age, Handicap, Reprisal, or National Origin (You may continue your answer on antlwr sheet ofpaper ifyou need more space). \7' ~ eb(Q.J..oJ-.o(O I l ~: 'iJ:.J. ~~8"-f~ · \l~ i 1: o~ J~ .,.2.5, 1.. J-- 2... H-.~ !fktJ 1!. Whnt Corrcciiv~ Action Do You Want Taken on Your Complaint'! Ol j II r ~~ ·('-e_- I I l (..Q.. ) ~J,_ ~d.,_<--~~ f I~ '1"':'/' ~rl olf, ~ . s._._ d.J...~ 6 I I I _I 9. A) I HaJe Diktlssc;h My Complain Wilh an Equal Emptoymcnt Opportunity Counselor and/or other' 13. Name of Counselor: · EEO ompi~t: 1 ! I · l.. L - ._ _ _ _ _ _ _ _ . DATE OF FIRST CONTACf WITH DATE OF RECEIPT OF NOTICE OF FINAL INTEVIEW WITH REO COUNSELOR EEOOP8ht~ I IO ~~~}el 1JJ0)J6 c~~.t) ~ /'to{ :WI() o I Have Not Contnctc:d an ') ·. .. ' •\.. .~ ~ •• ·~ I had a job interview fori 4/13/2010. On June 4, '-:2:-::0710:-,--=I~h~a--=d-a~ph~o-n-e-c--:al::-1-=.fr-o-m;I-----1~---:(F=B:::-:I::-:-HR=)~re-gar---:-:din~g..J conditional job off~r. I accepted and investigation process started. I went' to Baltimore Field Office for fingerprint and drug test on June 18, 2010. On June 25, 2010, I went to same field office for polygraph. My polygraph exam was conducted byl lon June 25, 2010 and took about 45 minutes.! lread the·routine disclosure statement about polygraph and I signed the paper on the computer. He stated that he does not care about anything but "espionage". This was the first time that I heard this word. I was glad that he explained what the espionage mean. I never heard because, I never had interest to do this kind of thing. He also said that he does not care if I steal over 500 valued ro erties or an bin . He said that he reviewed my SF-86 form b6 b6 He wanted me to write a number on a piece of paper and I wrote number 4. He wanted me to sit that chair for test. He taped that number on the wall in front of me. He asked the questions and he wanted me to say "no" when he asked if this number is 4. He wanted me to lie to him to test his computer and I did whatever he said. I was expecting that he will inte:J;View with me to understand what kind of person I am. However, he continued asking his main questions 3 times. He wanted me to answer "yes" these· set of questions such as "Do you iive in Maryland?" which is irrelevant questions. He also wanted me to answer "no" these questions such as "Have you lied ·to any officials?" "Have you ever thought to harm US?" etc. and espionage and terrorism related· questiot:ls. After he repeated 3 times to same questions and he told me that he could not read my mind. He wanted to know what was I thinking when he asked me questions about espionage. I told him that I was not thinking anything other than focus on the questions. I told him truth and I never lied to any officials. He also turned the chair. and sit backward. He seems that he was investigating or questioning criminal person. When I said I did not lie to him, he said that this is over and took me from the chair and took me to lobby and he said I can go. After all of these, I was still positive that I passed this polygraph because I did not lie to him. Here are the summary of the points that I feel discriminated: 'First of all he came to this polygraph exam with pre-convinced idea about my country of origin. He was very negative like he was doing criminal investigation that he is questioning guilty, criminal or teqorist person. Secondly, he did not interview me before sitting the chair. His job is dytermining or understanding to see if I am a liar. To do so, he should talk to me for better understanding of me. The polygraph computer cannot tell if that person is liar or not. That job is for human that means someone understand other human. This i~ Uob which he did-not want to understand what kind of person I am. b6 . 4 \ t • • Finally, he forced me to answer "no" to his certain questions and "yes" to other questions. He did not give me an option and chance to an~wer these questions truly. It looks like he pushed me to fail or something. His job is not to ~"'read my mind" but understand if I am a liar. He should not act like I am criminal. I have been selected for the position and I will be the future FBI employee not criminal. He should act positively. I knew myself that I am not a criminal or a terrorist. So, I requested 2nd polygraph when I received a letter frornJ !Polygraph Unit Chief on July 8, 2010. J have received a letter frozti Isection Chief of Security Division, stated that my request for znd poly has not been authorized. In summary; I did not understand how he came up with his conclusion in less than 45 minutes without an interview with me. Why he act like questioning criminal person? Why he is only interested in "espionage or terrorism" related questions? Why he was trying to read my mind instead of trying to understand what kind of person I am? Why I did not get a -znd polygraph with another polygraph examiner? . . Please check my SF-86 fonn...._-::--~--:---::----:--=~----:--~-----1 My background was investigated several times by the different agencies. I have a proven background and job history that I always be a good citizen of US. Please feel free to call me a~~...-_ _ _....~fyou need more detail about this matter. CRONOLOGICAL DATA REGARDING FBI EMPLOYMENT AND POLYGRAPH 6/4/2010 DOCUMENT EXPLANATION TYPE ....--.....for intetview confirmation on April13, 2010 e-mail for an interview office ...._.....--.......... Phone call fro FBIMHR) job offer fori !position phone call 6/9/2010 6/16/2010 6/18/2010 6/25/2010 6/28/2010 7/8/2010 7/2212010 8/412010 email email office office letter letter email letter Email fromc=](FBI·Baltimore) regarding form SF86 Email trornC::J(FBI·Baltimore) for Initial PSI on June 18,2010 I went to Baltimore office for fingerprint and drug test I went to Baltimore office for polygraph exam (Examiner name was l....__. ,. . Letter fro~ IFBI Polygraph Unit Chief; regarding failing to polygraph I sent aletter tal ~nd request for 2nd polygraph with explanations Iemailed toc==Jfor follow up to my request letter tal I Letter from(=:JeCurity Division Section Chief, stated 2nd po~ will not authorized, 8/9-8/18 phone call I have called several EEO Counselor to complaint about the discrimination issue. I have contacted and left messages to: · left amessage on 8/10/2010 and 'no response she is out of the office untiiS/29/2010 r-----..J Ispoke with her and she was so busy and did not take the complaint ,___---l.jleft amessage and also spoke with her, she was busy and did not take the complaint ....._..,..........L.; ;.; ;EE;;.; ;,O Program Manager, spoke with her on 8/13110 and she gave me the 3contact name. left amessage on 8/13/2010 and no response .1-------, on 8/18/2010 and she. took the complaint. DOCUMEN'r DATE 4/8/2010 4/13/2010 • __ ,...... I ~-__...., ·. I ·, 4! - - - - - - - - - - ·~ ', . 10. Date or'l'hi~ dmplaint: ~~ I ;r t~ ·~:-----:-------"' - - - - - - - t II. Sign Your (Complainnm's) Name Here: I 1,1 I III FOR.\! 00.1·201A Mi\R.2001 READ CAREFULLY i I • This form should be used only if you, as an applicant for Federal Employment or as a Federal Employee, think you have lx:en discriminated against ~CC!iu~c of race, color, sex (including sexual harassment), religion, national origin, age, disability (physical or mental), sexual orientation, p~rep~l status or reprisal by a FEDERAL agency, and have presented the matter for informal resolution to an Equal Employment OpP.ortunity (EEO) Counselor within 45 calendar days of the date the incident occurred or, if a personnel action, within 45 calendar days bfits ~ffcctive date. comp~ai!t ~ust • Your be filed within 15 calendar days of the date of your m:eipt of the Notice of Final Interview with the EEO Counselor. If the matter has hot been resolved to your satisfaction within 30 calendar days of you contacted the EEO Office and the final counseling 1 interview has Jot bJen completed within that time, you have the right to file a complaint at any time thereafter up to I5 calendar days after your receipt o1thF Notice of Final Interview. These time limits will only be extended under limited circumstances. I I i • The EEO Counselor or the EEO Officer wlll assist you in preparing your complaint. upon request. • Your writtL Llplaint I I I I shou~d be filed by you with the EEO Officer forth~: Bureau where the alleged discrimination occurred. I I • You may hav~ alrcpresentative at all stages of the processing of your complaint. • You will hL! of discriminatipn~ al opportunity to talk with an impartial investigator and present all the facts which you believe support your complaint, I inlc~tigation • After the of your complaint has been completed, you will be furnished a copy of the investigative file. You will then be given an oppo7u~!tr to request a final agency decision by the Department of Justice's Complaint Adjudication Officer (CAO) or a hearing before the Equal Employment Opportunity Commission (EEOC), which will be conducted by an Administrative Judge of the EEOC. At the hearing, whic~wJII ~c held at a convenient time and place:, you may present witnesses and other evidence in_ your behalf. • If your cakJJaiht is based upon sexual orientation or parental status, your investigative file will be reviewed by the Departmem of Justice's CAD lmti Jtinal decision will be rendered with no entitlement for further administrative review. I • If a hearing iJ hjld on your complaint, the CAO will take final action on your complaint by issuing a final order. The final order will notify you whc:'th~r 6r not the agency will fully implement the: Administrative Judge's decision and it will explain your appeal rights. If you elect to have~ ilntriediatc final agency decision without having a hearing, the CAD will take final action on your complaint by issuing a final agency ddci~ioh which consists of findings on the merits of each issue: in the: complaiqt. The: final agency decision will also include: an explanalion,ofyJur appeal rights. I' I]OI!sa~isfied • If you arc with the final order or agency decision, you have the right to tile a written appeal with the EEOC, Washington, DC, within 30icalendar days after your receipt of the final order or final agency decision. A copy of your appeal must be provided to the agency at the smrle time it is filed with the ~EOC. ~omllJiJ • If your is based on race, color, sex (including sexual harassment), religion, national origin, or reprisal, yoi a!so~h~ve the right to file a civil action in the appropriate Federal District Court:· ag~. disability (physical or mental) (o) Wlohin 91days of<=ipo ofoho firuol oooion on m indi•id"l "'""' ®mpl•i"' ifoo """' h" b'On filod; I. I i+t (b) Within 1180 days of filing an individual or class complaint if an appeal has not been tiled and final action has been taken; (c) Wit oh...;po ofoh..Commi,.ion's fino I dooision on"""''' ot (d)-After 180jdays from the date of filing an appeal with the Commission if there has been no final decision by the Commission. NOTE; Spo;l~ i"'rt~"'• u.S. Department of Justice Complaint off· ·crimination (See instructions on PRIVACY ACf STATE~: I. AUTHORITY- The authority to collect t!pinf'lonl~"on:,. is derived from 42 U.S.C. Section 2000e-16; 29 CFR Sections 1614.106 anf11E,1q . f.~ 2. PURPOSE AND US~-This information will be used to document the issues and ega'nons of a complaint of discrimination b ed on race, color, sex (including sexual harassment), religion, national origin. age, disab ity (physical or mental), sexual ori1BfJBn o · I. I v revet~~) The signed statement will serve as the record necessary to initiate an investigation and will Ofelime part of the complaint file during the investigation; hearing, if any; adjudication; Ldd!appeal. if one, to the Equal Employment OpportUnity Conunission. 3. EFFECfS OF NON-DISCLOSURE-Submission of this infqrmation is MANDATORY. Failure to furnish this information will result in the complaint being returned without action. '"-:!.,....."""":'-:-:---:::-:::-7:"'--:"""T-r-::-"""":::-:::::--:-.....,..,....-,r-.:..:....:.....!~.._,.u-"""'E:-l::H\t-Ftrtf~--j 2~::ujr Telephone Number (including area code) WorkL~~----------J---- Frrr: 4. Current Work Address 3. Which De artment of Justice Office Do You Believe Discriminated Against You? B. Street Address of Off\ce C. City, State and Zip Code D. Title and Grade ofY\)ur Job 5. Date on· Which Most Recent Alleged Discrimination Took Place Month Day Year II 6. Check Below Why You Believe You W ~ace (!r Color fGive Race or Color) {/c.'(! .461 J;ue /,·~ .4-JJ 0 Sexual Orientation 0 Religion (Give Religion)--------=----------~x·(Give Sex) 0 Male ~Female 0 Sexual Harassment 0 Reprisal 0 Age (Give a g e ) - - - . . , . . . - - - - - - - - - - - - - - - 0 Parental Status 0 National Origin (Give l'{ational Origin) - - - - - - - - - - - 0 Disability 0 Ptiysical . 0 Mental 0 Class Complaint 7. Explain How You Believe You Were Discriminated Ag!Unst (treated differently from other employees or applicants) Because of Your Race, Color, Sex (including sexual harassment), Religion, National Origin, ~ge,_ Disability (physical or mental);·Sexl!al. Orient_ation, Parentl)l Status, or Reprisal. Do not include specific issues or incidents that you have not discussed with your EEO Counselor:'(You fFlY continue your answer on another sheet of paper if.Y.ou peed more space.) J-OA-~ .J.A.·se.J..;tf/t;~+ c. JI-'L ::r .bt..l:t-vl.- :r ~Lt por-H'tvl.~ -z,ll j,<.)/,rv fkS$tL .a..s fYdt>t-tt'>1.tt.VLf +l...6,+'r2J d.,u;; d+f 'I <- L.:..(. blA-d(. r•-kn.. k~r( '_r- f.1:S~-<./._ ~~'1. -l:lu-·1- :r; +z>u}(_ ·a...fl.tf._ €.YU'1, -f-e..sf- e.x..4M/rz.&--h.()r~ -t'1'1.~'<-P- -I- 1-VA:f biL b3 -1-.A-/Ce. ,J-- Me.."t" --rn f_. re. 2-c-Ue..M..e.A..-I-~ cSl-.+- for-fl,z _c'/1.. M~ (!_u/l.L:·ko/1..,.._{ A:ffo ,1!-1-.AA<.Ar k+hJ/ 1 <--1- ..1-- t-tMl/\.J- vokti<.... M.M.e..t who Me.e.--1- -tit-e.. v{ C2_JA.) f'!..rlA.f!~ &...-}- fdr-1-h ;/L +Lz<.,'r (!_oraLAc~ < 8. What Corrective Action Do You Want Taken on Your Complaint? /-{i l-e_ b6 9. A) I have: discussed my complaint with an Equal Employment Oppo~nity Cqunselor and/or other, EEOOfficial. ·. . . ,. ·: '.\.· v .•.. .1 •• :::.:. DATE OF FIRST CONTACT WITH EEOOFFICE: DATE OF RECEIPT OF NOTICE OF FiNAL INTERVIEW WITH EEO COUNSELOR: ·t-----....:...---------...., I Have Not '1--------------"""TJntacted an EEO Counselor 10. Date of This Complaint: Month _2le_ Day L/ Year b6 t) 'Dee~c-~ --R \-eoC' ~ &L kt 51tl. ()l) '6 . . FORM DOJ-201A. ~cl '1/f1j(Jf{MAR. 2001 Appointment letters get hin~d. The basis to refuse me employment is my race and/or gend~r. Black females are subjected to.~ entirely different level of scruinty.:l was given a polygraph test in Memp~s and told tllat I failed, which was given by a male white. I requested a retake and was told that I passed the second , polygraph test taken in Nashville, 1N., which was given by a male black. The FBI office has disparately affected African Americans in general in their failure to hire such. The Memphis FBI office has a disproportionate number of females to males as well. I believe that I have been discriminated against on account of my race and/or gender. I have been treated unfair and unequal. The agency is still hiring . } I ! ~~ • J ·, ,• • I, ' I ~(: '" . : .. .. . I ~. • ' ' I ,) '' ' ' ) . ~ '' ' ~~ ~ "I r •• ,• '. ,r U.S. Departmtu£ of Justice Complaint Adjudication Office Agency Complaint NumberDJ Number 1 1 r I -·u "\ b6 .• '"= IV ED ..Jt- L...-_ _ _,..... 26\B FEB · ~ · A !I Ib 950 Penn~ylvania Avf-n}{e, JViYr:lll R< Pt{!)ft:Hfili:vCB11nfiililYS~~ tml'! ~ FEB 2 Wctshington. DC 20530 2010 b Dear This is in reference to your complaint of discrimination that you filed against the Federal Bureau of Investigation. Under the Department of Justice's equal employment opportunity regulations, the Complaint Adjudication Officer renders the final Department of Justice decision on your complaint. Enclosed is the final Department of 'Justice deci~ion. Rights of Appeal First, you have the right to appeal any pa.rt of this decision to the Equal Employment Opportunity Commission (EEOC) . You may do so by filing your appeal within 30 days of the date you receive this decision. Jf you are rep~esented by an attorney of record, the 30-day appeal period shall begin to run the day · your attorney receives this decision. The appea+ must be in writing. The Commission prefers that you use EEOC Form 573, Notice of Appeal/Petition, a copy of.which is attached, to appeal this decision. The notice of appeal should be sent to the Director, Office of Federal Operations, EEOC, Post Office Box 19848, Washington, D.C. 20036, by mail, personal delivery, or facsimile. You must also send a copy of your notice of appeal to I I EEO Officer, Federal Bureau of Investigation, loth & Pennsylvania Avenue, N.W., Room 7901, Washington, D.C. 20535. You must state the date and method by which you sent the copy of your notice to the agency's EEO Officer either on, or attac:::o::: ::: ::::c:h:fr::::a:f:';I:·:l c::I:::c:::: w cne appropriate United States District Court within 90 days of the· date you receive this decision. In filing your federal complaint, you should name the Attorney General, Eric Holder, Jr., as the defendant. Even if you appeal this decision to the EEOC, you still have the right to go to federal court. You may ~ile a civil action in the United States District Court within 90 . SET TICKLER '"fO CI.OSE BY.6.Li.nJJJL IF NO J.J>PEAL OR CIVIl ACTION FILE~: - b6 , I days of the day you receive the Commission's final decision on your appeal, or after 180 days from the date you filed your appeal with the Commission, if the Commission has not made a final decision by that time. If you cannot afford to file a civil action, you can ask the court to allow you to file the action at no cost to you. The court may also provide you with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver of costs should be directed to your attorney or the District Court clerk. ~re~ <~Gross Complaint Adjudication cc: 2 ·~· Offi~er NOTICE OF APPEAL/PETITION TO THE EQUAL E~fPLO\'~(£:'-iT OPPORTCNfTY COM>.llSSlON OFFICE OF FEDERAL OPERATlONS P.O. Box 19848 V\'ashlngLOn, DC, 10036 Complain:.llll lnform:.llion: tPic:uc Prmt or Type) Clmplainanc's name (Last. First. M.l.): Home/mailing lddrcss: City. State. 21P Code: Daytime Tdephone # (wirh area coue): E-mail address (if any): Atlorncy/Rcprcscntativc Information (il' :mv): Auo,rney name: f'!on-Attorney Rc:prc::sencutive name: Address: ·City, Stnte, ZIP Code: Telephone number (if applicable):_ .. . E·.mail·audress (if any): General [nformution: . N"ame of the agency bdng ·.charged with· discrimination: ·. . f dentify. tlte Agency's .complaint· number: Loca.cion of the ducy station or local t'Jcility in which the complaint arose: .. Has a final action been taken by the agency, an Arbitrator, FLRA, or ~1SP-B- QYes copy) on this complaint? 0No Has a complaim been filet.! on chis same . cnauer with the EEOC, ancnher agency, .gr thmugh any Mhcr administrative or collective bargaining procedures? 0No Has a civil action c_lawsuitJ bt::en filed in cunnecuon with this complaint'! 0No Date Received (R~.:mem ber to attach a QThis appt::al alleges a breach \)fa seul~mr.!nl agreement OY~s !fnt..lic:ue the ag(!ncy or pmcetlure. complainttt..lot.:ket number, and :mach a copy. if approprwt~) I 0 Yes 1 AcLut:h a copy of the t:h•il action riled) ;-.tOT! CE: Pl~ase :Jttuch a copv of chc final decision or orrier from which :-au ue app~aling. If a heanng was requeotet..l, plt:ase :Jttach :J ..:opy •lr" :he agency'~ linalorder and a cop:- oi the EEOC Atlministrauvc: Jutige·s t.lec;s10n . .-\ny •;ommems •lr bm:t' :n ~uopon of thiS appeal :vtUST be tiled ·.v~th the EEOC and With the agenc.:1 wichin 30 dol'S M :he date tnis ~ppeal ls :"ilt:c.l. The late :ht: :;ppeal :s :'ileti iS :ht:: date: on ·.vh1c:h :1 .s P?Stmarl~ed, hand Je:iv~~t:d. ur :'axed ~o the EEOC at :ht:: addre~s JOO"~ . ..::ignature -:;r' :omp1amam ur :omocamam ·~ ~::ore!:entach·c:: U.S. Departme•. ~ of Justice Complaint Adjudication Office Agency Complaint Numberj DJ Numberj j ~'--------~ b6 950 Pennsylvania Avenue, NW Patrick Henry Building, Suite 5300 Washington, DC 20530 . FEB 2 2010 DEPARTMENT OF JUSTICE FINAL DECISION in the matter of Whether complainant was discriminated against based on her race (African American) and sex (female) when on March 4, 2008, complainant received a letter rescinding her conditional offer of employment asl ~ith the FBI. The FBI EEO office dismissed these claims: (1) on November 9, 2007, complainant felt like she was being interrogated during her polygraph examination; and (2) 'on November 29, 2007, complainant received a letter advising her she did not pass her first polygraph examination. The Complainant Adjudication Office received the case for issuance of a final decision on February 5, 2009. Facts Complainant stated that the FBI extended her a conditional offer of employment as I lon February 21, 2007 (Ex. 3, p. 4). Complainant said the conditional offer of employment l~~tter stated that the "appointment would be rescihded if she b6 -2failed the background, physical fitness test, polygraph examination, physical examination, and/or drug testing" (Id. at 5) . Complainant said the FBI rescinded the conditional offer on March 14, 2008 (ibid.) 1 and that she was told that she failed the polygraph examination (Ex. 2, p. 3. Complai~ant did not identify the individual who told her that she did not pass the polygraph examination. Complainant appealed and was allowed to retake the polygraph examination (ibid.). Complainant said she passed the second polygraph examination and met the requirements stated in the conditional offer, yet she again was refused employment (Id. at 1). Complainant said the hiring process is unfair because the Memphis, Tennessee, Division has traditionally only "processed" white men to (Ex. 3, p. 5). Complainant said .the hiring criteria was "preset. for .hiring white males" (ibid.). Complainant said the FBI wanted to give the appearance that it attempted to hire a minority, so she was "taken through the motions during the applicant proc.ess for statistical reasof!s" (ibid.) . Compla_inant said. she was discriminated against becau~e "it has been ten years .since a black female has successfully been processed through the Memphis Division to (ibid.) . b6 I Chiefl said ._a_c_o_n-:d:-:i:-:t-1:-.o-n-a-.:-1-a_p_p_o_l.,..,-n-:-t_m_e_n-:t~o......,.f""f,....e_r_r_e_q .......uires appl J.cants to oe administered a polygraph examination as a part of the preliminary processing (Ex. 11, p. 1) .. ls.aid all applicants must pass a polygraph in order to continue in the application process (ibid.). I I explained that unsuccessful_ applicants have appeal ri~hts and may request to retake the .~olygraph examination . (ibid.) . l said the Polygraph Unit (PU) advised that; complainant had two polygraph failures (Id. at 1, 2), but was granted a retest after being notified by the PU of her first failure (Id. at 2). I I I I I I I said the supervisor reviews· the .polygraph test· resul~t~s-:-.-a-n-:d~1~'dentifies the appropriate code to discontinue the background investigation (ibid.). According to the code is entered into the Bureau Personnel Management System (BPMS) which automatically generates a generic letter (ibid.). lexplained that all applicants who are unsuccessful in pass1ng the polygraph examination are sent a letter generated by the BPMS (ibid.). lsaid complainant's conditional offer of appointment was resc1nded because complainant failed to pass the polygraph (ibid.). I I I I b6 · -3Special Agent (SA)I lwas assigned as the Regional Polygraph Manaser for the Knoxville, Tennessee Division (Ex.. 14, p. 3) . I ] said he conducts Quality Control reviews of polygraph examinations conducted in the regions (Id. at 2) . I Jsaid he provided a quality review on complainant's polygraph examination administered by SAl I in November 2007 (ibid.). I lsaid he agreed Wlthl~~----~ assessment that no deception was indicated in complainant's responses to questions related to National Security matters (ibid. ) . I I said deception wa's indicated in complainant's responses to questions related to use and s·ale of illegal drugs and completeness of her application (ibid.). b6 ~--~~lsaid he conducted a quality review on complainant's polygraph examination administered by SAl I on February 22, 2008 (ibid.). I lsaid the polygraph dealt with the drug and a~plication issues (ibid.). I _jsaid he disagreed withl !opinion that comElainant did not display deception in her responses (ibid.). Lsaid, "As the QC reviewer, my decision resulted. in an overall polygraph result of DI (deception)~ (ibid.). I I ~aid it is ~BI standard practice to have another PU Supervisor review charts and documentation when a difference in the evaluation of charts arises (Id. at 2, 3). I !said he sent complainant's second examination charts and documentation to PU Supervisor! I 1 1 (ibid.). T I !said he was not aware of complainant's race, -and his opinion regarding the deception in her resronses was not influenced by race or sex (ibid.). I _said the race of the person tested is not reflected on the FBI polygraph examination documents (ibid.). Regional Polygraph Program Manager! I is a Regional Program Manager for the Charlotte, N.C., Division (Ex. ~5, p. 1). I I said she regularly reviewed polygraph examination results and provided a second opinion for other managers conducting Quality Control Reviews (ibid.). I said a second review is conducted when a FBI PU Manage~r~o~r~a~ Regional Polygraph Manager determines a discrepancy exists with a decision made by a Field Polygraph Examiner regarding the results of a polygraph· examination (ibid.). I !said neither race or sex is a factor in her opinion regarding the results of a polygraph examination (ibid.). I I said she does not specifically recall her findings regard1ng her review of complainant's polygraph examination (ibid.). b6 b6 -4- Special Agent (SA) I lis a FBI polygraph examiner (Ex. 12, p. 1). lsaid he administered a polygraph examination to complainant, but he does not recall the specifics of the examination (ibid.). I lsaid neither race nor sex is a factor in his administration of the polygraph examinat,ions or evaluation of results (Id. at 1, 2). lsaid he forwarded the polygraph charts and other documentation to the PU, FBIHQ for Quality Control testing (Id. at 2). I Special Agentl lis a former FBI polygraph· examiner (Ex. 13, p. 1).1 !said he administered a polygraph examination to complainan't in February 2008 (ibid.) . lsaid neither race nor sex were.factors in his administration or evaluation of the polygraph examinations (ibid.). lsaid it was his opinion that complainant passed the polygraph examination with no deception based on complainant's comments and the results of the evaluation·(Id. at 2). lsai~ he sent the results of the examination along with accomJanying documentation to the FBI PU (ibid .. ). I _said t~e FBI Quality Cont~ol Review ~taff concluded that complainant was deemed "to have reflected deception" (ibid.) . I I I Analysis Complainant claimed that she was discriminated against on the bases of sex and race when the FBI rescinded her conditional offer of employment. Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, prohibits discrimination on the bases of race and sex. The framework for evaluating a discrimination claim under Title VII is found in McDonnell Douglas v. Green, 411 U.S. 792 ( 1.973) . In a disparate treatment case involving circumstantial evidence, the burden-shifting test set forth in McDonnell Douglas must be applied. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-508 (1993), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 2~4-256 (1981). In order to show disparate treat~ent discrimination under Title VII, the preponderance of the evidence in the record must demonstrate that complainant was treated less favorably than others because of race and sex. Center v. Hicks, 509 U.S. at 510 n.3. Complainant can prevail by showing that FBI the's reasons were a pretext for discrimination and that sex and race were the true reasons complainant's conditional offer of employment was rescinded. St. Mary's Honor Center v. Hicks. 509 u.s .. at 515 . .. '.· ' . -5I. Timeliness issues Claims 1-2, .as described in the Letter of Acceptance of Issues dated September 12, 2008, occurred November 9 and 29, 2007. Complainant contacted the EEO Counselor on April 8, 200.8, regarding these claims (Ex. 6) . The FBI EEO dismissed claim one because "it fails to state a claim of discrimination and is untimely," and dismissed claim two because it was untimely (Id. at 2) . EEOC regulations at 29 C.F.R. §1614. 107(a) (1) state that a complaint shall be dismissed if it fails to state a claim under §1614.103. A complainant must allege that she was injured in fact to be an "aggrieved employee" under 1614.103. As to claim one, complainant alleged that she felt that she was interrogated during the polygraph examination. Complainant has not shown how she was aggrieved or suffered a personal loss or harm regarding. a term, condition or privilege of her employment when she was administered the polygraph examination. Complainant has not shown that she wa$ subjected to an employment aqtion which has rendered her aggrieved for purposes of stating a claim within the purview of Title VII. The allegation does not challenge an unlawful employment policy or practice. See.Stup v. United States Postal Service, EEOC #05990465 (April 1, 2000). The FBI EEO office correctly dismissed the claim. EEOC Regulation 29 C.F.R. §1614. 105(a) (1) requires that complaints of discrimination be brought to the attention of the EEO Counqelor within 45 days of the date of the matter alleged to be discriminatory. Federal employees must contact an EEO Counselor within 45 days of the discriminatory to challenge the discriminatory act. See Clark v. Runyon, 116 F.3d 275, 276 (7th Cir. 1997). The record establishes that complainant contacted the EEO Counselor on April 8, 2008, more than 148 days after the November 9, 2007, incident and more than 130 days after the November 29, 2007, incident. Complainant's failure to contact the EEO Counselor within 45 days of the discriminatory act was grounds for dismissing each claim as untimely. II. Race and Sex Claims Complainant is a member of two protected classes, African American and female. Complainant claimed that she was discriminated against when the FBI rescinded her conditional offer of employment. Complainant said the FBI "has disparately affected African Americans in their failure to hire such" (Ex. 2, p. 3). The record does not contain any evidence that any $imilarly situated employees outside of complainant's protected I_ -6classes were treated more favorably by the FBI, and there is no evidence creqting an inference of discrimination. FBI officials articulated legitimate, nondiscriminatory reasons for rescinding complainant's conditional offer of employment. FBI Manual of Investigative Operations & Guidelines Part 1: 67-8.2 Polygraph Examination of FBI Applicants requires all applicants "undergo a preemployment polygraph examination focusing on national security issues, use or sale of illegal drugs, and completeness of the Application for Employment ·(FD14)'" (Ex. 17). Part 67-8.2.1 Polygraph Results 6 (b) provides that applicants who ... fail the initial polygraph examination ... will be disqualified from further rocessin ibid.). ·1 I I lchief said a · conditional appointment offer requJ.res app J.can. s t.o pass a polygraph examination as a~of the preliminary processing. According tol I thel____jsupervisor reviews the polygraph results, identifies the code to discontinue the background investigation, and enters the code into the Bureau Personnel Mana:emeft System.which automatically. generates .a generic letter. _explained that all applicants who are unsucc-essful in pass~ng the polygraph examination arl sent a Jetter issued by . Bureau Personnel ~anagjment System. _ _said the Polygraph Unit (PU) advised that complainant had two polygraph failures, so complainant's conditional offer was rescinded. I _ The evidence does not establish discrimination. The polygraph examination consists of two parts, Series I (questions related to National Security) and Series II (questions related to use and sale of illegal drugs and completeness of her application). Special Agent I lad~inistered the first polygraph examination and concluded that complainant's responses to Series I questions were not indicative of deception while her responses in Series II questions were indicative of deception (Ex. 22) . Special Agent administered the second Tolygraph examination which.consisted of Series I questions. _ !concluded that complainant's responses were not indicative of deception, but when the matter was forwarded for further review, Special Agent I I concluded that there was deception, and this was confirmed by Regional Polygraph Manager! (Ex. 23). I I lsaid FBI practice requires that a second opinion be provJ.ded when the Regional Polygraph Manager and Quality Control reviewer disagrees with a decision reached by the polygraph examiner. The record demonstrates thatl !conducted the ~nitial Quality Control reviews on complainant 1 s polygraph e~aminations administered byl land said, b6 .' -7- "As the QC reviewer, my decision resulted in an overall polygraph result of DI (deception)" (Ex. 14, p. 2). I I explained that he concurred withl !conclusions, but disagreed with I !conclusion that complainant did not display deception in her responses. I !conducted a review of I I assessment and concurred tha.t deception was indicated in complainant's second polygraph examination. FBI officials provided a reasonable explanation for rescinding the conditional offer of employment. Complainant claimed that the FBI's reasons were pretext for discrimination. Complainant said, "it has been t.en years since a black female has succeysfully been processed through the Memphis Division to attend the I (Ex. 3, p. 5). Complainant complained that the criteria was "preset for hiring white males;, (ibid.) . The evidence establishes that all applicants are required to take the same polygraph examination and there is no_evidence that the criteria is dtscriminatory. Acc~rding to I I "both males and females, regardless of race, perform equal.ly on polygraph examinations" (Ex. 14, p. 3). I !testified that the race of the person being tested is not reflected on the polygraph examination. I !testified that neither race nor sex were factors in the administration or evaluation of complainant's polygraph examination. The recqrd contains no evidence that complainant's conditional offer of employment was rescinded due to race or sex discrimination. The re . cord indicates that FBI officials collectively agreed that complainant's responses had shown deception, and her conditional employment offer was rescinded on that basis. There is no evidence of discrim~natory animus on behalf of management towards complainant. The record demonstrates that complainant has failed to prove that the FBI's articulated legitimate, nondiscriminatory reasons for its actions are pretexual . ... I • ~ (. -8- Decision The record does not support a finding that the·complainant was discriminated against on the bases of race or sex. ('~, Mar:K L. Gross Complaint Adjudication Officer I \ \ FEB.23.2011 11:12 ~~~~0/~~l~ #0472,.,'-'tlP.002 /003 I I"'QJ.I~ ~~=~tl U.l-1 UW ©c, Complaint of Discrimination . {.' ,_. (.t~~C ln.tlruatinn.' on r~n•ar.f~) l'ltlVIICY ACTSth'reMENT: I. 1\U'TliORtfY•TIIc JUtllorilyloc~:~llccttlli~infnnrt«IIOII derived fMm 4'Z U.S.C, ~~rlro2000a-l6: :!9 CFRScc:!llllls ll'il4.10G nndliii~.Hl8. i~ 2. r•1 11<1'051i 1\ND \JIIIl•TIIi~ inlllnn~.;on Will be a~ tn documcnliilll Wt!o, nnrk City. SUit~ and ~lp Code .~-\:t_ ~· C. City. StnJ.c an~ Zip Code Title and Grad~ ol'Ynnr Job U-e!.A.) _\\fA.ve. "" ..c:r 5. Ontc onWhi~h Mo~ R~ccnt Alleged l'li$c;rimination Took ~:"lace 2. Your Telephone Number (inr:llldirlg area code) R. Sttcr::t Addr·ess of Yout Agency B. Str..:~:t Address ofOftice Month ar I j lk_(SD 'l'llc ai~ ~ICih>:~~l will ~'lie na the """' i=romt > Sent: TMr:o~n~aa~y~F"::"1eb~r~u":::"ary~2~2r,~20~1:na~91'1"::"2"47"9""'X'A~Mr--___. >To:l > Subject:· Informal Complaint I > > Helloj > L....----.....1 > Attached is an info~mal Complaint concerning my treatment at a pre> employme~t polygraph. for a support position with the FBI. > > I can be reached at: > ~~r----....,1 "'>....__ 1 _ _ _____. 8am - 4:30 pm, Mon-Fri >I >....___ _ __......~fter5pm > .. :~· >Thank You > 1 r* Informal ComplaK' . ..txt> • I Friday I From: Sent: To: Subject: I March 05 j010 4:14PM FW: Informal Complaint b6 Did you prepare referral to counseling letter? If so, please provide me with the date .. Thank you -----Original Message----From:! Sent: F'="-r~id:r:::a~y,...,MrTa-::-r~ch~0-:=-5l"""2~0~1':'("0~1-::4r"'l7,.,.P=:TM,...-------J To:l Cc:. . . Suo...~e-c....f:...,R....e-:....ln...,f-or-m-a"""l.., om plaint HelloL..I_ _.....~ b6 I'm just checking in to see if there's anything I need to do? I haven't heard anything and was just wondering. Thanks On Feb 22, 201 o, at 5:39 PM,~...I_ _ _ _.....wrote: L...---....~lto an EEO Coun~elor, >~----:---=-' > Supervisorv Equal Employment Specialist Office of EEO.Affairs >I I . r > ____r---------------------------~ > Fromf > Sent: Monday. February 22, 2010 9:47 AM >To:l I > SuoJecf: Informal Complaint > > Hello~...l_ _-.....~ > > Attached is an informal Complaint concerning my treatment at a pre> employment polygraph for a support position with the FBI. > > I can be reached at: >r-----------, >I learn - 4:30 pm, Mon-Fri >·r--------, ~ !after 5 pm > > .. > Than'i<"You >·r---------, ~ flnformal Complaint -L.I_ _ _ _.....~ 1 hr U.S. Department of Justice Complaint Adjudication Office Agency Complaint DJ Numberl R~CEJVED Nu~erl I ~----------~ ZDJZ APFl-b, p J= 53 9.~~~~~~St:fi~94~tF;iif.JWpy. APR 05 2012 PHB-A4810 Washington, DC 20530 beS I Dear ~~------------~ This is 'in reference to. the complaint of employment discrimination that you filed against the Federal Bureau of Investigation. Under the Department of Justice's equa~ employment opportunity regulations, the Complaint Adjudication Officer renders the final Department of Justice ·deci~ion on your complaint. Enclosed is the final Departm~nt of Justice decision. Your rights of appeal are outlined below. Rights of Appeal First, you have the right to appeal any part of this decision to the Equal Employment Opportunity Commission (EEOC) . You may .d~ so by filing your appeal within 30 days of the date you receive this decision. If you are represented by an attorney of record, the 30-day appeal period shall begin to run the day your attorney receives this decision. The appeal must be in writing. The Commission · · ..;prefers that you use EEOC Form 573, Notice of Appeal/Petition, a dopy of which is attached, to appeal this decision. The notice of appeal· should be sent to the Director, Office of Federal Operations, EEOC; Po~t Office Box 77960, Washington, D.C. 20013, by mail, personal delivery, or facsimile. You must also send a copy of your notice of appeal to I I. Acting EEO. Officer, Federal Bureau of Investigation, 935 Pennsylvania Avenue, N. W., Room 7901, Washington, D.C., 20535. You must state the date and method by which you sent the copy of your notice to the agency's EEO Officer either on, or attached to, the notice of appeal you mail to the EEOC. Second, you have the right to file a civil action in the appropriate United States District Court within 90 days of the date you receive this decision. In filing your federal complaint, you should name the Attorney General, Eric H. Holder, Jr. , as the ·· ;de-fendant. Even if you appeal this decisi~V;~·~9~~~, ~~~~:, you still '.... . 1 /[~ }!: .:~ lh· .-----...__..., ::.:;~1 ~ ' t·: ',c.'.· 5. -: ~·i·•" t .!\·.' i· :· , , \ .. ·.. . :/ .-.1 r t "j .u~ , 'd'' • :. ,-. : , ·: T "· ~, ~·····.. • .,..--· 2 have the right to go to federal court. You may file a civil action in the United States District Court within 90 days of the day you receive the Commission's final decision on your appeal, or after 180 days from the date you filed your appeal with 'the Commission, if the _commission has not ·made ·a final decision by that J:.ime. If you cannot afford to file ~ civil action, you can ask the court to allow you to file the action at no cost to you. The court may also provide you with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver of costs should be directed to y~ur attorney or the District Court clerk. Sincerely, · ~~~ Complaint Adjudication Officer . . CC: r or:r. : ~''. NOTICE OF APPEAL/PETITION TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OFFICE OF F.ED ERAL OPERATIONS ·P.O. Box 77960 Washington, DC 20013 Complainant Information: (Please Piint o:- Type) I Complainant's name (Last, First, M.I.)·: I I jHome/mailing address: !!city, Stat:e, 7IP Code: IDa:t~me Telephone # (with area I I I C00'2): llc:-mail·address (if any): l Attorney f Representative Infc:>rmation (if -any): I!Attorn~y I. name: II I jNon-Attorney Representarive 1name: !Address: I !City, State, ZIP Code:. I I I !Telephone number (if applicable): liE-mail address (if any): I General Information: Name of the agency being charged with discrimination: I !Identify the Agency's complaint 1 1 ~n=u=m=b=er=:=·==============~~====================================~l Location of the duty station or 1 i .... local facility in which the complaint arose: ! 1~==============~~~============================~1! Has 2: final action been taken _ _ Yes; Date P,eceived _______ (P,emember ~G oy th::: agencv, ar, Arbitrator, a~ta:r a :opvj ! ,jF:...F,.c., 0:- l"lSPB em th~s _ _ f'JC: ' ij~rl-lD'ain·~· Th!s aoo:c:· a,::"''"'"'" ; . -..... ' · ' .. 111-;;;;.;.=~..;;:, 2 o~:a:r .I, llrlas a :om;Jiain;: r1eer· f1l:d on i,-r ,,.. s-c;ITI-;:.- • 1 ~11 • ..: ·--r~,... .- t==r·r ri•-::3 ... ·- .... • V.J,·~·r ... ' t-1.... 11'::' __ .._,_, I i---f'.lo ' '-- .. ;r.::.c ..l'"•J' __ ;,.r::. .,..rc.. ... ..,;::::.,_, ..... , .. D ....- ... =a··lr.::. "1-Cl-~c,l-d:::'-"-.'~~-', .1-- r-r~r, -:···-z"·'!·.::::.· "'- 1 --''''~'::1 1. ., •. _ -· !ianotne· agen:::·,:, :):· tnr(Jugh any n'JmDe'". and a::::acr·· 2: coP\. F a EJDrc.pr,a:~. lr-Jtr,e: oGflllr":!Sl:~a:l ''E: o· :ol1:::::' ,•;; I , i .. U.S. Departm.ent of Justice Complaint Adjudication Office Agency Complaint Numberl DJ Number 1 I L...--------1 950 Pennsylvania Avenue, N. W: Patrick Henry Building, Suite 5300 Washington, DC 20530 APR 05 2012 DEPARTMENT OF JUSTICE FINAL AGENCY DECISION in the matter of lv. Federal Bureau of Investigation b6 I Qn Mar8h 25 1 2010 1 complainant a former applicant for a position asl lwith the Federal Bureau of Investigation (FBI) 1 fi.led a complaint alleging employment discrimination on the basis of his race (~frican­ American) pursuant to Section 717 of the Civil Rights Act of 1964r as amended, 42 U.S.G. § 2000e-16 (Title VII). The issue accepted for investigation is: Whether complainant was discriminated against· based on his race (African-American) when he received a letter dated ·January 28, 2010 1 advising him that his application· was being discontinued at the preliminary processing stage as a result of his failed polygraph examination. (Ex. 6) . The Complaint Adjudication Office received this case on October 6, 2010 1 for issuance of a final Department of Justice decision. Facts In September 2009 complainant for a position asl I I appljed (E;x . 6 at 2 ) . I FBI interviewed complainant by telephone and sent him a letter extending a conditional offer of employment as! I Qendin a back round investigation. Ex. 9 at 2) • Special Agent administered a polygraph examination to 1n anuary 2010 at the FBI's New Haven., Office. (Ex. 9 at 3). I h;r· . ' I -2- A. Complainant's Allegations Complainant stated that he was nervous during the polygraph examination since it was his first. (Ex. 9 at 3). Complainant also said that durin th a~nant est~mate stated that regarding the number of times he 9 at 3) . I . After the questioning ended ltold complainant that the results showe_d deception regarding the number of times complainant had smoked marijuana. (Ex. 9 at 4). I I told complainant that complainant could change his answer regarding the number of times he smoked marijuana and be retested on the answer. (Ex. 9 at 4). Complainant declined, stating that the i e he provided was his best recollection. (Ex. 9 .at 4). then told complainant that he was sorry and that he would r ard his finding to the FBI's. ·Headquarters .. (Ex. 4 at 7). O I. Complainant stated tpat he became convinced thatl finding of deception was based upon racial stereotypes concerning A~rican-Americans and drug use. (Ex. 9 at 5). Complainant said that he was as honest as he could be during the exam and that his qualifications and letters of commendation had been overlooked. (Ex. 9 at 7) . He further stated that he worried that this failed exam could undermine his other attempts to find employment in criminal. justice. (Ex. 9 at 6). B. Management' s Response I I Special Agent said that he performed the polygraph on complainant after having conducted between 500 and 600 such examinations during his career. (Ex. 10 at 2). stated that he knew complainant was African-American from meeting him in person. (Ex. 10 at 4). I I said that complainant was amicable and professional during the process, as was himself. (Ex. 10 at 4}. Prior to conducting the polygraph, I !reviewed complainant's National Security questionnaire, drug disclosure form, and Pe+sonnel Security Interview (PSI) . I I I I I According tol complainant's responses to the drug question indicated deception. (Ex. 10 at 3). !said that he informed complainant that the question of frequency of drug use showed deception and aske~ c:mptainant if he was sure about his .answers. (Ex. 10 at 3) . said that he· told complainant "frhat complainant could prov~ e a number that complainant was I •• /1 '4. -3- comfortable with so that he could pass the polygraph. (Ex. 10 at 3). Complainant did not change his answer. (Ex. 10 at 3). I l said he then uploaded the documents associated with complainant's examination so Supervisory Special Agent (SSA) ~~~~~ I lcould conduct a Quality yontrql Review of the results. (Ex. 1'0 at 3) . stated that l concurred with I I conclusion that complainant's responses concerning drug use indicated deception·. (Ex. 10 at 3) . I I I Supervisory Special Agent! lsaid that he had worked as Regional Polygraph Program Manager since May 2008 fnd had been a polygrapher since 1997. (Ex. 11 a~ 2). ~~----~~­ .explained that he conducted a blind review of complainant's polygraph results. (Ex. 11 at 2-3). I !explained that the blind review meant that I I reached his own conclusion regarding polygraph results without knowing the results reached by the ~olygr~pher who administered the examination. ('Ex. 11 at 3). Lthen compared the results and his conclusion matched I (Ex. 11 at 3, 4) . I forwarded his conclusion into a system th~t generated a letter to complainant informing him that no further action would be taken regarding his application. (Ex. 11 at :p . I _ b6 I ~------~lstated that the only personal information available to him when conducting the review was complainant's name, date of birth, social security number, gender, height, weight, and address. (Ex. 11 at 3). C. Documentary Evidence The record includes complainant's drug disclosure form; .. the polygraph report; a letter dated January 28, 2010, from I I Chief of the Polygraph Unit, advising complainant that because he failed the polygraph stage, no further action could be taken regarding his application; and FBI policies concerning polygraph examinations and.pre-employment screening. Also included in the file is a memorandum stating that, from October 1, 2008 through June 1, 2010, applicants rejected due to failure to pass a polygraph had the foliowing racial backgrounds: 2,130 with race unknown, 74 white, 25 African-American, 15 Asian, 13 Hispanic, 2 American Indian/Alaskan national origin, and 1 . Hawaiian/Pacific Islander. Analysis Title VII protects federal employees from discrimination on basis of race. 42 U.S.C. § 2000e-16. In the absence of direct evidence of discrimination, the Supreme Court has :~he b6 " •' ' • ~ .. (l " -4- established a three-step process for establishing the parties' burdens of proof in disparate treatment cases. McDonnell Douglas Corp. v. Green 1 411 U.S. 792, 802 (1973). First 1 the record must show by a preponderance of the evidence that a prima facie case for discrimin~tion exists by representing such facts that if unexplained 1 reasonably give rise to an inference of aiscrimination. Id. Second, if the record establishes a prima facie case, the employer must articulate a legitimate, n~ndiscriminatory reason for its actions. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-56 (1981). Third, the record.must demonstrate by a preponderance of the evidence that the legitimate, .nondiscriminatory reasons articulated by the employer are a pretext for discrimination. Id. at 255-56. 1 Here, FBI has sufficiently articulated legitimate, nondiscriminatory .reasons for rejecting complainant's application for employment. The record indicates that FBI 1 s requirement of a polygraph examination that includes questions concerning prior drug use is a .race-neutral screening process. I I statements concerning his blind review of complainant's polygraph results indicate ·that FBI has established a second layer of review to guarantee the authenticity of results.. In· his review, I I had no information concerning complainant's race. e record contains no evidence that eitherr----lor considered complainant's race in reaching~~------~ ~ons. Aside from complainant's conclusion that! finding of deception was based upon racial stereotypes, . complainant did not identify any actions or statements byr----1 or any other FBI employee showing racial bias. Nothing in~s that any FBI employee harbored an animus based upon race or that complainant was treated differently from similarly situated employees outside his protected status. Given the absence of any indication that FBI's actions had a discriminatory motive, complainant 1 s claim of discrimination is denied. I Decision The ·evidence does not support complainant I Ei allegation that he was discriminated against based 9n his race when he received a ·letter dated January 28, 2010, advising him that his application was being discontinued at the preliminary processing stage "- .. -5- because he failed a polygraph examination. Mark L.. Gross Complaint Adjudication Off'icer ._______________.~ Attorney Complaint Adjudication Office ..·-· Complaint of Dis mination . · (See·instruo!io.ns on reverse) PRJVAC ACT STATEMENT: I. AUTI:IOR11!Y.·, The authority to co~C~:t this infonnation .• is derived from 42 U.S.C. Section 2000e-L6: 29 CFR Sections 1614.106 and 1614'.'1(J8. "' 2. P E AND USE-This information will be used to document the issues and allegations of a compl ·m of discriminal.ton based on race, color. se;t (incl~ding :SCxual harassment), religion, na \onal origin. age, disability (phys c or menial)." sexual orieniation or reprisal .. t's Full Name ~· :\·"' will :..· 11te signed statement will serve as the record necessary to initiate an investigauon and •. become pan of-the complaint file-during the.investiga!ion: hearing, if any; adju.~ic~pon: and appeal. if one. to the Equal Employment Opportunity Commission. 3. EFFECTS OF l':ION:·DISCLOSURE·Submission of this infotmation is MANDATORY. Failure to fumisti this jltformation'will resuti'in the complai'nl tieing retu!J!Cd without actipn. • : J' .Y9.ur T<;lephontt. Number (including area code) .. Hom .. Work,___ _ _ _ _ _ _ ___._ _ _ _ __ .•, 3. Which Department of Justice Discriminated Against You? 5. Date on Which Most Recent Alleged Discrimination Took Place 4. Current Work Address 6. Check Below Why You Believe You Were Discrimina fd 12(Race or Color (Give Race or Color)·~..,f4::3...--------Month Day Year ·. 0 Religion (Give R e l i g i o n ) - - - - - - - - - - - - - - - 0 Sex (Give Sa) 0 Male 0 Female 0 Sexual Harassment ·o 0 Age (Give age)-------------~---­ Q National Origin (Giv~ N.ationa.l O r i g i n ) - - - - - - - - - - 0 · Disability : .. • , 0 ':Physir.al 0 Mental . Parental Status 0 Class Complaint . 7. Explain How You Believe You~Were Discriminated Against (treated djffe~lyfroTfl qther t!111{1loyees or applican.ts) B~nse of Your Race, Color, Sex (including sexUal harassment), Religi?n• Nation~ Origin, AgerDillabilitY (physical or.~ental); Sexual orlentatiod..Pareilta,I &ta~. ~r ~I?JlrisaL ~not include _spc:cific issues or incidents that you have not discussed w1th your EEO Counselor. (You may continue your answer on another sheet of paper if you need mol'!! spdct.J • • · .. · I ht..v..:. bt~"' c1.i'>C1-l"lh~l' ...:tu\ 0."1c..i1>')1" dw +o 7'Ci.t.e. G.') :i: lov;..'!> 'Tt~C.T-4.,{ ci:He1c>"\.1"\'1 a.-- ,, ""k:t'l.". 'le-IJo·tl,. ""'cl f!h.;..;-t'> ol> i'kc c..pfll:c:.._Na" /~'or...e-.~ 14.-t-l-1\( "~""'~ +>n.'( c..._.t he. """-" .:.~ "tiJ.Nw<. M'i~'>+c."''e. cl.w-~""? H-..~ I'F-r ~~-eA -:!-we.:«.. lo"t P~""-'~r).-e.ct ·rh.-(! '54""'< Y>et~~F'~-r. :! ~~vc.., c..l'\fJ 1\0't c;.ll~...-,(.t i., r.... ..,.., -t-J....,. Sc.m... f<.~; .. ,, 'f)f"'e fr\~ 11 al'f,'"a.p" 0.-!. he ..t•tJ. "::!WI.<') f.orr;.w fu clr~v'bvf'lCYI\.tl\<'1" ~01" )V'y i'NJV>t~-1 't'fPCf\.')t'i) ~ H/11.>~~. oH J:.I-o,-.. fA,I!),~Jl.. -:f.l'c.<~t-1·~-r ::X:hc.....,e.. 1 e~l\ +Ne. ltivri·.m. ll~ P"('t<;'-<=•ph /I'<:,MpviC<-1-,'"" w, fk~~:l'e wer:-i ~~V,1-(A<.lt')~"N"'j tt-'1 jJoll.f~""JlhS 0-t, wdt G.'S 5evel~l CJYifJ'>~~l Q;-J f\c..pp~I\It. .,, oll'v V1>-eo a.'> we U Ct~ l)e,-~f.:.( f-t:..Pef"'t-.(1.<,.(':> +.> a.v>c-f if>v't'.o;·t;.:~,.,S tela.:'f-ec;( .,_u.,w.. .... t:":••, ,.... 1. ,, '. < 9. A) I have qisc.ussed m:' comp.ia,int with an Equal EmploY.ffient Opporttt~ii)oi:ol),.~!?r'~.~o'r o~er . ~·\ .~.)'~.~~.C?f ~_o~nselor · EEO Official. · , ~· • .... • . ; ...... ,_, • ... ..-. : DATE OF FIRST CONTAcr Wl1'H EEOOFFlCE: 0;). I U! I 2Dit) 10. Dat.e of This Complaint: Monili Day Year ·' DATE OF RECEIPT OF NOTICE OF FINAL INTERVIEW WITH EEQ .COUNSELOR: 0~ I;~ ,.;uiO 11. Sign Your N~ Here: los I~D~~ I JJeG(tf}eJ Rfed 8jJ/)L> {~}_J 03 .. ., -0 IHaveNot Contacted an EEO Counselor .. , I 1• ,\,.,' , I f./f) 1;( !'; FORM.DOJ-201A MAR. 2001 '\) .... U.S. Department of Justice 'II Complaint Adjudication Office EEOC Number I Agency Compl~a~i-n~t~N~o-.-r1_______.______-, DJ Numberl I 950 Pennsylvania Ave; NW Patrick Henry Building, Room A4810 Washington, DC 20530 QCT 1- 2 2011 b6 .,, C' :J -n 0 p1 ...., C' ~ 0 Dear I F=l s= C) )> This is in reference to the complaint of discriminat~n ~ . ' -., .. that you filed against the Federal Bureau of InvestigatiorB:. c..n . ;J Enclosed 'is the Department of Justice's Final Order and ~ ~ Memorandum Explaining the Final Order. The Department of Justice agrees with the Administ:rative Judge's P.ecfsion that you were not subjected to unlawful discrimination. Rights of Appeal First, you have the right to appeal the decision to the Equal Employment Opportunity Commission (EEOC) . You may file your appeal of the claim within 30 days of the date you receive this decision. If you are represented by an attorney of record, the 30-day appeal period shall being to run the day your attorney receives this decision. The appeal must be in writing. The Commission prefers that you use EEOC Form 573, Notice of AppealiPetition, a copy of which is attached, to appeal this decision. The notice of appeal should be·sent to Carlton Hadden, Director, Office of Federal Operations, EEOC, Post Office Box 77960, Washington, D.C., 20013,. by mail, personal delivery, or facsimile. You must also send a copy of your notice of appeal Unit Chief, Federal Bureau of Investigation, 935 Pennsylvania Avenue, N.W., Ro~m 7947, Washington, D.C., 20535. You must state the date and method by which you sent the copy 9f your notice to Mr. I I either on, or attached to, the notice of appeal mail to the EEOC. tol I ~ .l (') rd .. ... -2- Second, you have the right to file a civil action in the appropriate United States District Court within 90 d~ys of the date you receive this decision. In filing your federal complaint, you should name Attorney General Eric H. Holder, Jr., as the defendant. Even if you appeal this decision to the EEOC, you still have the right to go to federal court. You may file a civil action in the United States District Court within 90 days of the day you receive the Commission's final decision on your appeal, or after 180 days from the date you filed your appeal with the Commission, if the Commission has not made a final d.ecision by that time. If you cannot afford to file a civil action, you can ask the court to allow you to file the action at no cost to you. The court may also provide.you with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver .of costs should be directed to your attorney_or the District Court clerk. 0~ Mark L. Gross Complaint Adjudication Officer Cc: Frances del Toro .,,_ n:tgc: The U.S. Equal Empioyment Opportunity Commission NOTICE OF AP:PEAL!PET'ITION TO THE EQUAl EMP.J,..QYMENT OPPORTUNITY COMM.I.S.SION 7 ' ;:. • ,_' '"";,, I "' :oFFICE OF FED·ERAL OPERATION'S ·P:O. ;Box 77.960 "' .: WashiFi-gtOFl/ DC 200.13 Complainant Information: (Please Print or Type) ·CpmpJ~inant's nam~j~~~t 1 First1 - M.. I.)·: jHorne/mailing address: I lcity 1 Stater ZIP Code: I . Daytime Telephone# (with area code): I !E-mail address (if any): > ,, ,; • ' l Attorney 1 Representci'tlve i'Nfoftn~f'fon (if any): ' ......::r::' ~-:-· it: ,,,~. !Attorney -name: Non-Attorney Representative· name.: !Address: _I city I State, ZIP CpJj e: •. • •• !E-mail address (if any): 't' I ,',,. -· Generai·Information;-·F Name of the agency being cha!',ged with di:scriminatip,R.: ,. Identify the Agency's com'plciirit number:. •' . ...~· .. .. - .. Location of the duty station or local facility in which the complaint arose: Has a final action been taken by the agency, an Arbitrator, FLRA, or tvJSPB on this !complaint? _ _ Yes; Date Received (Remember to attach a copy) No This appeal alleges 2 breach of settlement agreement -- Has a complaint been filed on No this same matter with the EEOC, - _ _ Yes (Indicate the agency or proc:edi.!re, complarnt/do:ket another agency; or through any number, and attach a copy, if appropriate) 1 1othe!: administrative or collective i I I I I II 1 U! :; u~s. Department of Justice Complaint Adjudication Office EEOC No.I Agency Co~m-p__ l_a_i_n_t__N_o-.--~--~---------DJ Number I I 950 Pennsylvania Ave, NW Pairick Henry Building, Room A4810 Washington, DC 20530 OCT 1 2 2011 DEPARTMENT OF JUSTICE FINAL ORDER in the matter of lv. Federal Bureau of Investigation Based on a review of the record in this case, the Department of Justice accepts the Administrative Judge•s decision that the complainant wa~ not discriminated against, pursuant to Section 717 of the Civii Rights Act of. ~~64 as amended, 42 u.s.c. §2000-16 (Title VII). Mark L. Gross. Complaint Adjudication Officer Department of Justice U.S. Department of Co~plaint ~ustice Adjudication Office Agency Complaint No. EEOC No.I DJ Number~~--------~--~ b6 950 Pennsylvania Ave, NW Patrick Henry Building, Room A48*0 Washington, DC 20530 DEPARTMENT OF JUSTICE MEMORANDUM OCT 12 2011 Expl'aining the Final Order in the matter of lv. Federal Bureau of Prisbns 29 C.F.R. § 1614.110 provides that when an Administrative Judge has issued a decision, the Department of Justice shall issue a final order notifying the complainant whether the agency will implement the Administrative Judge's decision. In this case, the Administrative Judge's finding that complainant was not discriminated against based upon his race .or is supported by the record. In explaining how the decision was reached, the Administrative Judge correctly.stated the facts, identified the proper issues, and correctly applied the legaL standards in evaluating complainant's allegation that he was subjected to race-based discrimination when, on January 19, 2010, and February 10, 2010, he was required to participate in two polygraph examinations and was subjected to inappropriate conduct by two separate polygraph examiners, and when his appli9ation for a Special Age~t position was rejected because he failed multiple polygraph examinations. Upon our independent review of the record, we further note that complainant has also failed to state a claim of reprisal based upon To establish a prima facie case of retaliation under Title VII, complainant must show (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Affairs, EEOC App. No. 0120065217 (June 23, 2008) (citing Whitmire, EEOC App. No. 01A00340). Here, complainant has not alleged that he or his wife engaged in any prior EEO activity. Thus, complainant's retaliation claim must fail. I I . ~, (,, For these reasons, the Department of Justice accepts the Administrative Judge's decision and enters a final order acknowledging that the Administrative Judge's decision will be fully implemented. Mark L. Gross Complaint Adjudication Officer· b6 Attorney Complaint Adjudication Office ... U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSlON Washington Field Office ·-------.-----·-- - - - - ----·-·--l31'M Street, N~"E.- - - - - ·-·------·---.:....__ Washington, D.C. 20507 ___ ------~------------------ Complainant, ) ) ) ) v. y Eric Holder, Attorney General, U.S. Department of Justice, )· ) ) ) EEOC No·l...__ _ _ _____.l 1...------1 Agency No ....._ _ _ _ ____._ Date: September 7, 2011 ORDER ENTERING JUDGMENT For the reasons set forth in the enclosed Decision dated Septembe~r 7, 2011, judgment iri the above-captioned matter is liereby enterecl.· A N:otice To The Parties explaining their appeal rights is attached. This office is also enclosing a copy of the hearing record and the Report of Investigation for the Agency. Itissoo~· For the Commission: Franc~s del ~oro Administrative Judge Enclosures ;.: .. .·· i. ... .I ~------------------------------_J ' .. ; : '.:' . t ' CERTIFICATE OFBERVICE For timeliness purposes, it shall be presumed that the parties received the foregoing documents Within five (5) calendar days after the date they were sent vi,a first class mail. I certify that on .September 7, 2011, the foregoing documents were sent via first class mail to the following: bE Oft:ice of the General Counsel Federal Bureau. of Investigation ' 935 Pennsylvania Avenue, NW Room P A-400N W ashirigton; DC 2053 5 MarkL Gross ·Complaint Adjudication Office U.S. Department of Justice 950 Pennsylvania Avenue, NW Civil Rights Division, CAO, PHB Washington, DC :?0530 / Frances del Tor Administrative \ udge J .. I • 2 .(t t I \ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ·washington :Field Office - - - - - - - - - - - - - - - - - _ . . : . . . . · 131 M·Street, N:E; ··---·--· Washington, D.C. 20507 ~omplainant, v. Eric Holder, Attorney General, U.S. Department of Justice, ) ) ) ') ) ) ) ) ) EEOC No~~--------~ AgencyNo . . _ l_ _ _ _ _. . . . . Date: September 7, 2011 DECISION This Decision is issued pursuant to 29 C._F.R..§ 1614.109(g) (2011).· This office issued an Acknowledgment Order on June 21, 2011. On August-23, 2011, Complainant filed a request fo·r a decision without a·hearing. Complainant states that he "will not be financially able to attend d~positions and hearings in Washington, DC" and that he has "not acquired the necessary leave time needed to attend the events related to this case." Complainant's r~quest was not filed in the form of a Motion for a Decision Without a Hearing or included a discussion of the issues before me. To date, ·the Agency has not filed a response to Complainant's request. ~e remaining procedural history is contained in the case file and the Report oflnvestigation ("ROI"), and will not be reiterated. The record before me consists of the ROI and the hearing record. CLAIMS Whether Complainant was discriminated against on the basis of his race (African American), when: (1) on January 19, 2010, and on February 10, 2010, he. vyas required to participate in polygraph examinations and was subjepted to inappropriate conduct by two :,. separate examiners; and (2) by letters dated January 25:~. 2010,.arid February 26, 2010, his 3 •rt.'• application for a._l---------~I was rescinded because he failed multiple polygraph ----··-·examinations:------Complainant has satisfied the procedural prerequisites for a hearing, but the evidence· does not wru-rant one. See Anderson v. Liberty' Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co.~- Zenith Radio, 475 U.S. 574, 587 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-:23 (1986). I find that Complainant has not shown that there are apy issues requiring a hearing and therefore, it is appropriate to issue summary judgment in favor of the Agency. ANALYSIS To establish a prima facie case of disparate treatment, Complainant may demonstrate that . . he was treated less favorably than a similarly situated. employee outside of his protected group. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Absent comparative data, Complainant may also est~blish a prima facie case by setting forth sufficient evidence to .create an inference of discrimination. See Texas Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248, 256 '(19?1), n. 6; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). If Complainant establishes a prima facie case of discrimination, the burden then is on the Agency to articulate a legitimate, nondiscriminatory reason for its challenged actions. See Burdine, 450 U.S. at 252-54; McDonnell Douglas Corp. 411 U.S. at 802. If the Agency does so, the prima facie inference drops from the case. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 510-11 (1993). Complainant then has to prove by a preponderance_ofthe evidence that the proffered expl~ation is a pretext fox: unhi.wful discrimination. S~e Hicks, 509 U.S. at 511·; Burdine, 450 U.S. at252-53; McDonnell Douglas, 411 U.S. at 804. Complainant always retains ·--··the ultimate burden of·persuadingihe·trier of fact that the A_gency unlawfully-discriminated 4 against him. See Hicks, 509 U.S. at 511; United States Postal Service_Bd. of Governors v. 74ikens; il60 U:S:711, 715 (1983)'-·-·: __ _ .,,,,_, _________ .. _______ .,..----· --------·-- I hereby reference the material facts found;in the ROI. As previously stated, I find that there are no genuine issues of material fact or credibility that require :resolution at a hearing. for the following. reasons. Accordingly, summary judgment in favor of the Agency is appropriate . . . See Anderson v. Liberty Lobby, Jnc.;.411 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). ~...-_ _ ____.!(White), Unit Chief, ~olygraph Unit, Internal Security Section, Security__ Divisi~n, FBI, .stated that all FBI . _ I_ _ _ _ _ _ ___.!candidates, are required to take and pass a polygraph examination. o.indicated that a polygraph test consists of two sets of I questions, one set which-focuses on the applicant's suitability and lifestyle (which include questions related to use of illegal su~stances) and a set of. questions which target national security issue~. According to applicants. In addition,! I Iall the polygraph ~est questions are the same for all Iattested that, analogous to Complainant's case, if a test result is determined to be inconclusive after undergoing Quality Control, the candidate is re~tested on a subsequent date. L...------llacknowledged that Polygrapher~..!--------~~declined to conduct Complainant's polygraph examination. ~..I_ __.I explained that l.__ _ __.ldeclined to conduct the test because .___ ___,Jistated that._!_ _ ____.ldec~sion was standard practice· and appropri~te under the circumstru:ices, as~...l_ _ _.....~ad a conflict of interest ~-------------...J 5 ! ____.lst~;ed that she .___ _ __.I(White),. the Polygrapher who substituted .... administered·Complainantfour sets of questions·and that_in-each-series the first asking was - - - - determined to be "Indicative of Deception." According to._l_ __,lthe determination is most likely attributed to ~e ruling of"Inconclusive" by FBI Headquarters' Quality ControL I 1. . further add~d that Complainant's second set of questions appeared to be "Inconclusiye" and the two subsequent sets appeared to. be "Not Indicative ofDeception."l...._ __,~ndicated that Complainant's "No Deception Indicated" resuits were overturned by FBl Headquarters' Quality Control ancl that the results were determined to be "Inconclusive." . _ I_ ___.~ndicated that an · appiicant's racial information is not ~ncluded on the reports sent to FBI Headquarters' Quality Control. . Polygraphers -------II(White) ._I and ....l _ _ _.....I(Black) conc~uded that Complainant's subsequent polygraph te~t results were indicative of deception with respect to · questions related to illegal substances. Moreover, 1 ...________.1 attested that their results were verified by FBI Headquarters' Quality Control. Lastly,._!-----'!authorized the discontinuation of Complainant's job application due to his failure to successfully GOmplete the . . preliminary processing stage regarding his background investigation. As the Agency has articulated legitimate, non-discriminatory reasons for its actions, the burden now shifts to Complainant to demonstrate that there is a genuine dispute as to whether the Agency's proffered reasons are a mere pretext for discrimination. Complainant, however, has . . failed to present substantive evidence to refute the Agency's articulation .. Furfuttr, I find that ·other than Complainant's uncmroborated assertions, the record is devoid of any evidence that the Agency's actions were based on discriminatory animus. In fact, none of the' witnesses who provided affidavits or had first-hand knowledge of the-incidents before me attested that.the . .. '-· 6 resul~s ----· of the polygraph tests were incorrect or that the Polygraphers improperly influenced the ~examinations~ 1 note·that Complainant.did not fail one>butiwo-polygraphiestswhere·the - · · - - - - examiners reached the same conclusions. Moreover, the results we~e verified at all times by FBI Headquarters' Quality Control. Conclusory 8_$Sertions that the Agency' s· .intentions and motivations are questionable are not enough.to withstand a summary judgment motion. Goldberg v. Green & Co., 836 F.2d 845, 848 (4th Cir. 1987); Ross v: Communications .Satellite Corp., 759 F.2d 355, 365(4th Cir. 1985); Schwapp v. Town ofAvon, 118 F.3d 106, 111 (2d Cir-. 1997). I note that "[e]mployers generally have broad discretion to set policies and carry out personnel decisions and should not be second guessed be a reviewing authority absent evidence of unlawful motivation." Holley v. Dep 't of Veterans Affairs, EEOC Request No. 05950842.(November 13, 1997). Here, there is ;no evidence that the Agency's actions were based upon an unlawful discriminatory motive. Accordingly, because Complainant has not created a genuine issue of material fact with regar4 to the Agency's articulated reasons~ I find that Complainant's allegation of disparate treatment cannot survive summary judgment. DECISION For the foregoing reasons, and in the absence of any evidence indicating that the Agency's actions were discriminatorily motivated, I find that Complainant's claims of discrimination cannot survive Summary Judgment. SO ORDERED. Frances del Toro Administrative Judge 7 NOTICE ---'This "is a decision'·by an 'Equal Employment'Opportunity·Commission Administrative--------Judge issued pursuant to 29 C.P.R.§ 1614.109(b), 109(g) or 109(i). With the exception detailed below, the complainant may not appeal to the Commission directly from this decision. EEOC regulations require the Agency to take final action on the complaint by issuing · a final order notifying the complainant whether or not the Agency will fully implement this decision within forty (40) calendar days ofreceipt of the hearing file and this decision. The complainant may appeal to the Commission within thirty (30) calendar days of receipt of the Agencts final order. The complainant may file an appeal whether the Agency decides to fully implement this decision or not. The Agency's final order shall also contain notice of~e complainant's right to appeal to the Commission, ·the right to. file a civil action in federal district court, the name of the proper . defendant in any such lawsuit and the applicable time limits for such appeal or lawsuit. If th~ final order does not fully implement this decision, the ,Agency must also simultaneously file an appeal to the Commission in accordance with 29 C.P.R.·§ 1614.403, and append a copy of the appeal. to the final order. A copy ofEEOC Form 573 must be attached. A copy ofthe final order shall also be provided by the Agency to the Administrative Judge. If the Agency has not issued its final order within forty (40) calendar .days of its receipt of the hearing file and this decision, the complainant may file an appeal to the Commission directly from this decision. In this event, a copy of the Administrative Judge's decision should be , attached to the appeal. The complainant should furnish a copy of the appeal to the Agency at the same time it is filed with the Commission, and should certify to the Commission the date and method by which such service was made on the Agency. All appeals to the Commission must be filed by mail, personal delivery or facsimile to the .following address: Director Office of Federal Operations Equal Employm~nt Opportunity Commission P.O. Box 19848 Washington, D.C. 20036 Facsimile (202) 663-7022 Facsimile transmissions over 10 pages will not be accepted. 8 '• I l COMPLIANCE WITH AN AGENCY FINAL ACTION -----,··---····-·--·,- ··-·· ..... An Agency's final action that has not been the subject of an appeal to the Conunission or civil action is binding on the Agency. See 29 C.P.R.§ 1614.504. If the complainant believes .that the Agency has failed to comply with the terms of its final action, the complainant shall notify the Agency's EEO Director, in writing, of the alleged noncompliance within thirty (30) calendar days of when the complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and respond to the complainant in writing. If the complainant is not satisfied with the Agency's attempt to resolve the matter, the complainant may app~al to the Co!Illliission for a determination of whether the Agency has complied with the terms of its final action. The complainant may file such an appeal within thirty (30) calendar days of receipt of the Agency's determination or, the ev~nt that the Agency fails to respond, at least thirty-five (35) calendar days after complainant has served' :the Agency with the allegations of noncompliance. A copy ofth.e appeal must be served on the . Agency, and the Ag~ncy may submit a response to the Commission within thirty (30).calendar days of receiying. the notice of appeal. m .,,_ 9 ,••' " · U ..s. bep~rtment of Justice Complaint of viscrimination (see instructions on reverse) PRI CY ACT STATEMENT: 1. AUTHORITY-The authority to collect this infonnatiR EQlfifn~!f)t will serve as Ute record necessary to indicate an investigation will is deri ed from42 U.S.C. Section2000e-16; 2!1 CFR Sections 1614.106 and 1614.108. become part of the complaint file during the investigation; hearing, if any; adjudication; 2. PURPOSE AND USE-This information will be used to document the issues and appeal, if one, to Ute Equal Employment Conunission. a~d allegations of a complaint of discrimination based on race, color, sex (including sexua!Z009 JUN 3.1 EiJFE~ o~d:f:-JilscLOSURB-Submission of this infonnation is MANDATORY. harassment), religion, national origin, age, disability (physical or mental), sexual orientation ,Failnre to furnish Uris infonnation will result in the complaint being retumed without action. OFFICE OF EEO AFFAIRS orreprisal. Work:..___ _ _ _ _ _ _ _ _ _ _ __ Discriminated Against You? Professional Support Clearance Unit/ Polygraph Examiner B. Street Address of Your Agency B. Street Address of Ofttce 1970 E. Parham Rd. Richmond, VA 23228 ~ace or Color Orientation Month 04 Day 27 Year 09 (Give Race or Color) __African American'--------- o Sexual · o Religion (Give Religion) - - - - - - - - - - - - o Reprisal 0 Sex (Give Sex) o Male o Female o Sexual Harassment o Age (Give Age) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ o Parental Status ~tiona! Origin (Give l'{ational Origin) _West Oakland CA_ o Class Complaint o Disability o Physical o Mental 7. Explam how you were dtscnmmated agamst (1 reated dij}erently }rom other employees or applicants) Because of Your Race, Color, Religion, Sex, Age, Handicap, Reprisal, or National Origin ( Y. space). e On April27, 2009 I reported to the Richmond, VA fi o Ice as requ e or a po ygrap exam as a con ition of employment with FBI. It was during this time that the policies of fair EEO practices was not followed. My digp.ity and integrity was violated due to the fact that the polygraph examiner overstepped boundaries in an attempt to criminalize me and paint a false picture that was not of my true character. This was done methodically and deliberately excluding me of an equal employment opportunity with the Federal Bureau of Investigation. Therefore, this grievance is based on race and national origin. 8. What Corrective Act1on Do You Want laken on Your Complamt'? 7Yee;tte.."'f t:Cd t(j/, lot I ,/?-fJ/;4!#/c.) I wo~ld like my application reinstatL ro the next step in the hiring pr~cess and against the polygraph examiner. for utsciplinary action to take place 9. A) I Have Discussed My Complamt EEO Officia!J Wnn an Equal Employment Upporrumty Counselor and/or other DATE OF FIRST CONTACT WITH EEO OFFICE: 05/11/2009 DATE OF RECEIPT OF NOTICE OF FINAL INTEVIEW WITH EEO COUNSELOR I B. Name of Counselor: b6 o I Have Not Contacted an EEO Counselor MAR. 2001 READ CAREFULLY • This form should be used only if you, as an applicant for Federal Employment or as a Federal Employee, think you have been discrimi-nated against because of race, color, sex (including sexual harassment), religion, national origin, age, disability (physical or mental), sexual orientation, parental status or reprisal by a FEDERAL agency, and have presented the matter for informal resolution to an Equal Employment Opportunity (EEO) Counselor within 45 calendar days of the date the ~cident occurred or, if a personnel action, within 45 calendar days of its ~ffective date. • Your complaint must be filed within 15 calendar days of the date of your receipt of the Notice of Final Interview with the EEO Counselor. If the matter has not been resolved to your satisfaction within 30 calendar days of you contacted the EEO' Office and the fmal counseling interview has not been completed within that time, you have the right to file a complaint at any time thereafter up to 15 calendar days after your receipt of the Notice of Final Interview. These time limits will only be extended under limited circumstances. • The EEO Counselor or the EEO Officer will assist you in preparing your complaint, upon request. • Your written complaint should be filed by you with the EEO Officer for the Bureau where the alleged discrimination occurred. • You may have a representative at all stages of the processing of your complaint. • You will have an opportunity to talk with an impartial investigator and present all the facts which you believe support your complaint of discrimination. • After the investigation of your complaint has been completed, you will be furnished a copy of the investigative file. You will then be given an opportunity to request a fmal agency decision by the Department of Justice's Complaint Adjudication Officer (CAO).or a hearing before the Equal Employment Opportunity Commission (EEOC), which will be conducted by an Administrative Judge of the EEOC. At the hearing, which will be held at a convenient time and place, you may pre~ent witnesses and other evidence in your behalf. • If your complaint is base4 upon sexual orientation or parental status, your investigative file will be reviewed by the Department of Justice's CAO and a final decision will be rendered with no entitlement for further administrative review. • If a .l].earing is held on Y?ur complaint, the CAO will take final action on your complaint by issuing a fmal order. The fmal order will notify you whether or not the agency will fully implement the Administrative Judge's decision and it will explain your appeal rights. If you elect to have an immediate final agency decision without having a hearing, the CAO will take final action on your complaint _by issuing a final agency dec1.,10n which consists of fmdings on the merits of t. .....,il. issue in the complaint. The fmal agency decision will also include an explanation of your appeal rights. • If you are not satisfied with the fmal order or agency decision, you have the right to file a written appeal with the EEOC, Washington, DC, within 30 calendar·days after your receipt of the final order or fmal agency decision. A copy of your appeal must be provided to the agency at the same time it is filed with the EEOC. • If your complaint is based on race, color, sex (including sexual harassment), religion, national origin, age, disability (physical or mental) or reprisal, you also have the right to file a civil action in the appropriate Federal District Court: (a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) Within 180 days of filing an individual or class complaint if an appeal has not been filed and fmal action has been taken; (c) Within 90 days of receipt of the Commission's final decision on appeal; or (d) After 180 days from the date of filing an appeal with the Commission ifthere has been no fmal decision by the Commission: NOTE: Special statutory provisions (PL 93-259) relating to the right to file a civil action apply to age discrimination complaints. Please consult with your EEO Officer for assistance. 0 ..,., ..,., c::; June 8, 2009 1"11 0 Equal Employment Opportunity Officer Federal Bureau of Investigation Room 1901 935 Pennsylvania Avenue, Northwest Washington, D.C. 20535-0001 f. ,..,.., f:ll 0 .., l> iJJ $ Gl) ........ §' -a c._ §:E - -J 1J ~ +:.'" .:0 m 0 m - < Ri'i 0 .c To whom it may concern: This is to advise you that I am filing a grievance against the decision to rescind the conditional job offer of the FBI based on unfair EEO practices. · On April27, 2009 I reported to the Richmond: VA field office as required for a polygraph exam as a condition of employment with FBI. It was during this time that the policies of fair EEO practices was not followed. My dignity and integrity was violated due to the fact 'that the polygraph examiner overstepped boundaries in an attempt to criminalize me and paint a false picture that W(l.S not of my true character. This was done methodically and deliberately excluding me of an equal employment opportunity with the Federal Bureau of Investigation. Therefore, this grievance is based on race and national origin. Before the examination began, I was asked to read and sign a disclosure of what was to. take place during·the polygraph exam. After reading the exam disclosure statement that read, the exam would be video taped and recorded I was told by the examiner there would not be a camera or recorder present. In the back of my mind, I felt that this could become a potential problem. My eagerness to proceed in the hiring process alone with the fact that I had nothing to hide, I continued. I ·· The examiner began by asking me questions that were personal questions about my upbringing and personal values which seemed to be within the scope of his job. However. the more I answered question~ the more he kept making comments and referrin to how the FBI could not just hire eo le that were not of hi h moral standards and inte 't . I I answered all of the initial questions honestly but could not help but notice the negative I undercurrent that was swelling· against me. The examiner covered the polygraph equipment and the questions that I would be asked while hooked up to the equipment. I did riot have a problem with the questions because I was positive that I would be able to answer truthfully and pass with flying colors. The time finally came to start the exam and I was uncomfortable with this gentlemen but I was hopeful that he would be professional. He began to ask me the test questions which was consistent with the ones we practiced. I was prompted to reply with a yes or no .answer. I answered each and every question truthfully to reflect my past as it related to the questions asked. The examiner asked the same questions over and over and I answered the questions honestly each and every time while following all instructions. After some time, I could sense my fears were coming to reality and would be at the mercy of this man who was operating without any checks and balances. He told me that I was having a little problem with one question. He then proceeded to tell me that he was going to change up a few of the test questions and test me again. He asked me the test questions several times. Once again, I answered each question truthfully. At the conclusion of a long series of asking me the test questions, I was instructed to stop. The Examiner seemed to be visibly upset and displeased with me. He walked around the table he was sitting at and pulled a chair up right in front of me while I was still hooked up to the equipment invading my personal space. He said " Look, I'm going to tell you the question your not passing is the drug question. Have you ever used drugs or sold drugs?" I was dumbfounded because that was the question I had the most confidence in by answering no! i said "I have never used or sold drugs." Before I could finish my statement, he stopped me. Then proceeded to try and put word in my mouth by saying, "What happened is that you may have used drugs one time or had some early drug usage in your life." I replied, "No I have never used diugs or sold drugs in my life." He was very upset by this time and told me to stop. saying that because I was painting myself in a comer that ·I could not get out of. He would not except that answer as the truth and at this time I felt as if it was not about what the reading showed on the polygraph equipment but more about the personal feelings of examiner. My demographic background, ethnicity and upbringing, seemed to be a problem for him. So I looked him directly in the eyes and stated, "Where I grew up yes, I saw .others abuse and sale drugs but I never used or sold them." He stated, "That is the problem with you guys." He then unhooked the polygraph equipment and threatened me with the job by saying I didn't pass the test twice. Presented with the possibility of having my dreams and hopes of continuing my service to this country in the Federal Bureau Investigation my mind began to race and a great deal of stress was placed on me. He said to me, "Look you have to just get things off the table so we can move pass this." I knew he wanted me to say I used drugs before, but I could not give him what he wanted because I never used drugs. I quoted the drug policy to him that if you used marijuana over three year ago or used other substance like cocaine over 10 years ago, all you have to do is disclose it at the beginning. I wanted to inform him that I was aware of the FBI policies and would have disclosed any past usage if that was the truth. Subsequently, he just continued to hammer away with statements that had no merit.or I true basis behind them.l IHe told me that I failed the test twice and he was not going to ·be able b6 I ~~~--~~~~~ to test me agam that day. Also in order to keep the process going I needed to get some things off the table and do a 86c statement. I really did not have anything of significance to add. but I was told to think of anything back through my whole life in which I could not think of one time I have ever used or sold drugs. The examiner told me to give a written account of the event on a 86c which he had readily available.! 1- ~o I told him that this is an insult to my integrity and drug ._u_s-ag-e--or-dru...--g-s-al,...e_s_w_a_s_a-n'"""d..,.is--so...... mething I am strongly opposed to.l The FBI claims to have a zero tolerance for discrimination, however my experience was totally the opposite on this particular day. My decision to file a EEO complaint pains me deeply. I was selected for the position because of my professional experiences. I was able to again show .. myself among many applicants to be worthy of a job offer given a fair opportunity. I can not let b6 I one man's backwards thinking deny me the opportunity to reach my full potential. I am confident that once the facts are reviewed by and independent entity the truth will come to the light. Sincerely, KEY POINTS * There were no checks and balances because the exa,rnination was not videotaped or audio recorded. Therefore, the pol~graph examiner could operate in an inappropriate manner. * The comments the polygraph examiner was making during the interview portion of the exam were deliberate, settled and unscripted in order to send a message to me. The message was he decided who is eligible to be hired in the FBI. * I was not given the same opportunity that other applicants were given because policies were not followed. · *The polygraph examiner used the threat of the FBI job offer to coerce me into a false admission. Moreover, the admission was not something_ to be disqualified for by FBI policies and was just a childhood memory. * Invaded my personal space and made comments about my past behavior that was totally untrue or without merit, thus painting a false picture of me in order to lower my score on the exam so I would not be selected. · * The polygraph examiner said that I failed the exam, but I would be called back for a retest. However, I did not fail the exam and was telling te til,lth . .. .. NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT SUBJECT: FROM: NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT EEO Counselor . _ I_ _ _ _ _ _ _ _ . DATE: 5/29/2009 TO: (Name of Person Counseled) This is to inform. you that because the matter you brought to my attention has not been resolved to your satisfaction, you are now entitled to file a discrimination complaint based on race, color, religion, sex, national origin, physical or mental handicap, age, sexual orientation and/or reprisal. If you file a complaint, it must be in writing, signed, and filed, in person or by mail within 15 calendar days after receipt of this notice. "Xou will be provided a form (DOJ 201-A) for filing your complaint. If filed by mail, it must be done through the U.S. Post Office Department since· the postmark is used to determine the date filed. The internal FBI maiHng system is not acceptable. It is preferred that the complaint be filed with the Bureau's Equal Employment Opportunity Officer; however, any of the following offiCials are authorized to receive discrimination . · complaints: Equal Employment Opportunity Officer Federal Bureau of Investigation . . Room 7901 935 Pennsylvania Avenue, Northwest Washington, D.C. 20535-0001 Black Affairs Program Manager or Federal Women's Program Manager or Hispanic Employment Program Manager or Selective Placement Program Manager (These individuals are located at the same address as listed above for the FBI's. EEO Officer.) Director Federal Bureau of Investigation Room 7176 935 Pennsylvania Avenue, Northwest Washington, D.C. 20535-0001 Special Agent in Charge ·..... Field Office Field Office Address Director, Equal Employment Opportunity (Assistant Attorney General for Administration) U.S. Department of Justice lOth & Constitution Avenue, Northwest Washington, D.C. .20530 If you file your complaint with any of the above FBI officials (othe.r than the EEO Officer), it will be sent to the EEO Office for processing. Also, if you choose to file your complaint with any of the other officials listed above, be sure to provide a copy of your complaint to the EEO Office to ensure prompt processing. In addition, if you file your complaint or a copy of same with the Department of Justice (DOJ), ensure that you carefully review and comply with the instructions regarding the dissemination of complaint material as contain~d in the Prohibited Communications form furnished you. This is necessary since not all employees of the DOJ have top secret clearances. It should be emphasized that a complainant may not wittingly or unwittingly disclose· sensitive/classified information to individuals/agencies not having the appropriate security clearance to receive such information. To avoid inadvertent disclosure of sensitive or classified information that may be contained with the filing of a complaint form, it is suggested that all FBI employees file their complaints with the FBI's Equal Employment Opportunity Officer. The complaint must be specific and encompass only those matters discussed with me. If you retain an attorney or any other person to represent you, you and your representative must immediately notify the EEO Officer, in writing. You and/or your representative will receive a written notice of receipt of your discrimination complaint. Regarding your contacts with your representative, ~nsure you comply with instructions in the Prohibited Communications form. U.S. Department of Justice \ " Complaint Adjudication Office Agency Complaint Numberl DJ Number I I . . ._________. 950 Pennsylvania Avenue, N. W. Patrick Henry Building. Room A4810 Washington, DC 20530 SEP 14 2012 ~ Dearl ~ ;:::; -;\) r rn :;2, . -~ \) \11 -"''1'\ This is in reference to the discrimination co~plaint ~a~yoJ=' filed against the Federal Bureau of Investigation. Under ~he5> Department of Justice 1 s equal employment opportunity regulatiClns, the · Complaint Adjudication Officer renders the final Department of Justice decision on your complaint. Enclosed is the final · . Department of Justice decision. Please note that the portion of this decision addressing your claim of di-scrimination on the basis of parental status cannot be appealed. First, you have the right to appeal any part of the decision (except the parental status analysis, as noted abov.e) to the Equal Employment Opportunity Commission (EEOC) . You may do so by filing your appeal within 30 days of the date you receive this decision. If y9u are represented by an attorney of record, the 30-day appeal period shall begin to ru~ the day your attorney receives this decision. The appeal must be in writing. The Commission prefers that you use EEOC Form 573, Notice of Appeal/Petition, a copy of which is attached, to appeal this decision.· The notice of appeal should be sent to Carlton Haddon, Director, Office o~ Federal ·Operations, EEOC, Post Office Box 77960, Washington, D.C., 20013, by mail, personal delivery, or facsimile. You must also send a copy of your notice of appeal tol !Acting EEO Officer, Federal Bureau of Investigation, Room 7901, JEH Building, 935 Pennsylvania Avenue NW, Washington, D.C., 20535. You must state the date and method by whicn you sent the copy of your notice tol leither on, or a_ttached to, the notice of appeal you mail to the EEOC. Second, you have the right to file a civil action in the appropriate United States District Court within 90 days of the date you receive. this decision. In filing your federal complaint, you :~~hould name Attorney General Eric H. Holder, Jr. as the defendant. b6 Even if you appeal this decision to the EEOC 1 you still have the right to go to federal court. You may file a civil action in the United States District Court within 90 days of the day you receive the Commission's final decision on your appeal 1 or after 180 days from the ·date you filed your appeal with the Commission/ if the Commission has not made final decision by that time. a If you cannot afford to file a civil action 1 you can ask the court to allow you to file the action at no cost to you. The court may also provide you with an attorney if you cannot afford to hire one to represent you in your civil action. Questions concerning when and how to file a waiver of costs should be directed to your attorney or the District Court clerk. Sincerely ~ ~~ Mark L. Gross Complaint Adjudication Officer cc: .. ·-· 2 NOTICE OF APPEAL/PETITION TO THE EQU_I\.L EMPLOYMENT OPPORTUNITY COMMISSION OFFICE OF FEDERAL OPERATIONS P.O. Box 77960 Washlngton, DC 20013 Complainant Information: (Plea:J.~f~oJ.}:~e) . ~ .. Attorney/Representafi;e infor~=ation .(if any): ' .~ .~ .,.L.... ~. _ _ _ _ _(Remember to attach a copy) a bre.~~h. o~ settle_ment agreement .. ;(Indicate the agency or procedure,. complaint/docket number, and attach copy, if appropriate) (Attach a copy of the civil action .filed) NOTICE: Please attach a copv of the final decision or order from which you are appealing. If a hearing was requested, please attach a copy of the agency's fmal order and a copy of the EEOC Administrative Judge's decision. Any comments or brief in support of this appeal MUST be filed with the EE09 and with the agency within 30 davs of the date this appeal is filed. The date the appeal is filed is the date on which it is postmarked, hand delivered, or faxed to the EEOC at the address above. U.S. Department of Justice Complaint Adjudication Office Agency Complaint Numberl DJ Number I I .__________. 950 Pennsylvania Avenue, N. W. Patrick Henry Building, Room A4810 Washington, DC 20530 SEP ·1 4 DEPARTMENT OF JUSTICE FINAL AGENCY DECISION in the matter of lvs. Federal Bureau of Investigation 06 On February 3 201lr complainant! lfiled an employment discrimination complaint aga~nst the Federal Bureau of Investigation (FBI) pursuant to Section 717 of· the Civil Rights Act of 1964 1 as amended 1 42 U.S.C. § 2000e-16 (Title VII). The issues accepted for investigation are whether complainant suffered discrimination based on·hiq race (black) and prior protected EEO activity whenr on September 28 1 2010 r -he learned that the FBI released negative information about him to another agency. 1 The Complaint Adjudication Office received this case for issuance of a final Department of Justice decision on July 18 1 2012. Facts I. Complainant I (black) stated that in December 2008 he applied for ~nl I position with the FBI. Record of Investigation ( "R 11 ) r ex. 9 r p. 2. Complainant stated that he passed his panel interview/ drug testr and physic.al examination for that position. b6 Complainant stated that on April 27 1 2009 1 a white man administered the required FBI polygraph examination to complainant. Ibid. Complainant stated that the examiner "asked a number of inappropriate questions and made a number of false tions about me based on m Comp a~nant state t at t e exam~ner "assume t a used illegal drugs at some point while growing up 1 and told me he did not believe me when I said I had not used such drugs. Ibid. Complainant stated that the examiner accused him of lyingr and claimed that the examination indicated that complainant was being :.i.d.ecepti ve. --~-. 11 -------- --------~-------------~-~----------- -2- Complainant stated that later in 2009 he learned that he had not been selected for the FBI position. Id. at 3. Complainant stated that he then filed an EEO claim against the FBI claiming that the FBI polygraph examiner had subjected him to . discrimination on the basis of race and national origin. Ibid. Complainant stated that his initial EEO claim was still pending. Ibid. stated that the results of h~s FBI polygraph test · should not have been released to anyone until his EEO complaint had been resolved. Ibid. Compla~nant II. Management 1 s Response ~~~~~--~~lstated that he was the Unit Chief of the _ Polygrafh Unit of the FBI at the relevant times. Ex. 10, p. 1. I _stated that he had reviewed the results of complainant 1 S April 27, 2009 1 polygraph examination and determined that complainant had given deceptive answers to~que;tiofs related to complainant's. "suitability." Id. at 2-3. stated that race plays no role in the interpretation o po ygraph ~esults. Id. at 3. · I I stated that she was the Acting Section Chief of the National Name Check Section for the FBI at the relevant times. Ex. 11, p. 1. I lstated that her section is responsible for disseminating information from FBI files in response to ~equests from other federal agencies. Id. at 2. I lnoted that her section is authorized to disseminate such information under Executive Order 10450 and Homeland Security Presidential Directive (HSPD) 12. Id. at 2-3. · I Istated that on July 24, 2009, her section received a request from the I lfor information about complainant. I I stated that/ as complainant ·had applied for a position with the FBI, he had signed an SF-86 form authorizing the FBI to release .information about him "for determination of suitability or eligibility for a national security position. '1 Id. at 3. I I stated that her section notified thel lthat oh April 27, 2009/ during a polygraph examination, complainant save answers "indicative of deception" concerning his use or sale of illegal drugs and the completeness of his application. Ibid. -3- III. Relevant Documents The record contained a redacted April 27, 2009, memorandum from an FBI polygraph examiner that reflected the results of complainant's pre-employment polygraph test. Ex. 12. The report noted that after the examiner confronted complainant about the polygraph results from complainant 1 s answers to questions involving drugs: com2lainant amended his aEElication to indicate I I . I Ibid. I The record contained an August 3, 2009, letter from the FBI's National Name Check Program indicating that on April 27, 2009, during a polygraph test, complainant had given deceptive responses to questions concerning drugs and the completeness of his FBI application. Ex. 13. Attached to the letter was a redacted copy of complainant's polygraph examination report. Ibid. Also attached was a March 18, 2009, SF-86 form, signed by complainant. Ibid. The form stated: "I authorize custodians of records and other sources of information pertaining to me to release such information upon request of the invest·igator, special agent, or other duly accredi-ted representative of any Federal agency authorized above regardless of any previous agreement to the contrary:" Ibid. Analysis I. Legal Overview Section 717 of Title VII makes it unlawful for a federal employer to discriminate against an individual because of that person's race or prior protected activity. 42 U.S.C. § 2000e-16. To establish an inference of raci~l discrimination under Title VII, the record must show that: 1) complainant belongs to a protected group; 2) complainant was qualified for the position in question; 3) compla~nant was subjected to an adverse employment action; and 4) similarly situated individuals.not in complainant's protected group were treated differently. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,· 256 (1981); Stevens v. EEOC, EEOC No. 01970848 (August 14 1 1997) (citing Smith v. Dep't of the Air Force, EEOC No. 01932276 (May 19 1 19 94) ) • To establish an inference of retaliation under Title VII, the record must show that: 1) complainant engaged in protected conduct; 2) complainant experienced an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse·employment action. Jackson v. United Parcel Service, Inc., 548 F.3d 1137, 1142 (8th Cir. 2008); Enica ~v. Principi, 544 F.3d 328, 343 (1st Cir. 2008) . ... -4- For purposes of Title VII claims, an adverse employment action is an act'ion that materially affected the complainant's employment or materially altered the conditions of her workplace. Burlington Northern & Santa Fe Ry ..v. White, 548 U.S. 53, 68-71 (2006). For purposes of Title VII retaliation claims, adverse employment actions need not qualify as "ultimate employment actions" or ~aterially affect the terms and conditions of employment. Ibid; Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing ·EEOC Compliance Manu~l No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit sufficiently adverse treat~ent that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Ibid .. Once an inference of prohibited discriminatory conduct has been established 1 management may explain its actions. When management offers non-discriminatory reasons for its actions, the complainant' .s claim will fail unless the evidence demonstrates. that management's proffered reasons are not credible, and that management discriminated against the complainant as a result of the complainant's protected trait. See St. Mary's Honor Center v. Hicks 1 509 U:S. 502 1 519-525 119~3); Burdine, 450 U.S. at 256; Allen v. Michigan Dep 1 t of Corr., 165 F.3d 405 1 409,· 412 (6th Cir. 1999). Agencies charged with protecting classified information have discretion in determining who may have access to such information. Dep't of the Nayy v. Egan, 484 U.S. 518, 527-29 (1988). broa~ II. FBI managers presented a legitimate, non-discriminatory reason for submitting the results of complainant's April 2009 polygraph results to the I I I Istated that the I I requested such information from the FBI as part of its background check on complainant, and the FBI responded to th~t request pursuant to its legal authori~y and obligations. It was reasonable for a federal agency to submit relevant background information about an applicant to another federal agency upon request, particularly when such disclosure is authorized by law. No evidence impeached! !statement. No evidence indicated that prohibited discriminatory intent played any role in the~--~ FBI,s decision to disclose complainant,s information to thel I No evidence indicated that I lwas ever aware of complainant's race or protected activity. See Holmes v. Potter, 384 F.3d 356, 362 (7th Cir. 2004) (discrimination cases usually fail when management was unaware of a complainant 1 s membership in a protected class) . No evidence indicated that any similarly situated applicant received better treqtment from FBI management. :.The documentary evidence further indicated that complainant '.· ' ... -5- signed an SF-86 form authorizing the FBI to disclose information about him for purposes of background investigations. No evidence indicated that the FBI acted outside ~he scope of the disclosure that the SF-86 form permitted. Complainant claimed that his FBI polygraph examiner subjected him to racial and national origin discrimination during the ~pril 2·7 ,· 2009, polygraph examination. No evidence in the record corroborated that claim. It was unclear as to why complainant believed that the examiner's questions were discriminatory, particularly as complainant provided additional relevant information to the examiner after the examiner confronted complainant about his answers tl certatn questions. More important,.no evidence indicated that_ _or ~ny other FBI manager acted with prohibited discriminatory 1ntent in disclosing the results of the polygraph test to thel I No evidence indicated that the FBI polygraph examiner played. any role in the decision to convey the results of the April 27, 2009, polygraph examination to thel I Accordingly, complainant's claim fails. · Decision The record did not support complainant's claim ·that FBI managers discriminated against him on the bases of race and reprisal. Accordingly, complainant's claim is denied. Complaint Adjudication Officer ~.....____~~· Attorney Complaint Adjudication Office .. .· ) FEDEP~4L BUREAU OF INVESTIGATION FOIPA DELETED PAGE INFORMATION SHEET No Duplication Fees are charged for Deleted Page Infomlahon Sheet(s)_ Total Deleted Page(s) - 1 Page 47- b6