04a40038
03-03-2005
Andrew T. Harrison, Petitioner, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Andrew T. Harrison v. Department of Justice
04A40038
03-03-05
.
Andrew T. Harrison,
Petitioner,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Petition No. 04A40038
Appeal No. 01A03948
Agency No. D-98-3495
DECISION ON A PETITION FOR ENFORCEMENT
On April 4, 2004, the Equal Employment Opportunity Commission (EEOC or
Commission) docketed a petition for enforcement to examine the enforcement
of an order set forth in Andrew T. Harrison v. Department of Justice,
EEOC Appeal No. 01A03948 (July 30, 2003). This petition for enforcement
is accepted by the Commission pursuant to 29 C.F.R. � 1614.503.
In EEOC Appeal No. 01A03948, the Commission found that the agency
discriminated against petitioner on the basis of disability (diabetes)
when on August 13, 1998, the agency determined that petitioner was
medically ineligible for hire as a Special Agent, GS-1811-9/11/12, with
the agency's Drug Enforcement Agency. The Commission found that the
agency improperly ended its processing of petitioner's application for
employment in violation of the Rehabilitation Act and ordered, inter alia,
that the agency place petitioner back in the hiring process at the point
where he stopped, and complete any other remaining steps in the process.
In the instant Petition for Enforcement, petitioner contends that the
agency failed to comply with the Commission's order in that it required
him to step �back� in the application process and repeat filling out
another Form SF-86. Petitioner also contends that the agency withdrew his
application for reasons which were pretextual to conceal the agency's
continued discrimination and refusal to comply with the Commission's
order. In response, the agency contends that it fully complied with
the Commission's order.
We find that the agency complied with the Commission's order in EEOC
Appeal No. 01A03948. By letter dated October 2, 2003, the agency placed
complainant back in the hiring process. Applicants for Special Agents
are required to successfully complete each assessment phase of the hiring
process which consists of: qualifications review; panel review; medical
examination; physical task test; psychological assessment; urinalysis
drug screening; polygraph examination, background investigation;
and final hiring decision. When the agency determined on August 13,
1998, that petitioner was medically ineligible for hire, petitioner had
progressed through the application process and had completed the panel
interview, the psychological assessment, and the medical examination
(presumably including the urinalysis screening). The record does not
show, and complainant does not argue, that he had undergone a background
investigation, a component of the application process that each applicant
is required to successfully complete.
In placing petitioner back in the hiring process, the agency conducted
a background investigation which included a review of petitioner's
employment history, employment disciplinary record, criminal records, and
interview of petitioner's former supervisors. The agency also requested
that petitioner complete another Standard Form-86, Questionnaire For
National Security Positions, which requested information regarding
the applicant's employment history, financial & criminal records, and
alcohol and any illicit drug use for the preceding seven years. It is
reasonable that the agency would request petitioner to complete another
SF-86 form given that five years had lapsed since petitioner completed
the prior form and more recent information would be needed to complete
a thorough investigation of complainant's background and suitability
for the Special Agent position.
The agency determined that the derogatory information that surfaced
during petitioner's background investigation raised questions
regarding petitioner's suitability for employment as a Special Agent
and accordingly, the agency withdrew petitioner's application from
consideration for the position.
While the petitioner argues that the agency's reasons for withdrawing
his application for consideration were pretextual, the relevant issue
here is whether the agency complied with the Commission's order to
place petitioner back in the application process at the point where he
stopped.<1> We find that the agency complied with this provision of
the order.<2>
After reviewing the instant petition for enforcement, the agency's
response, the previous decision, and the entire record, the Commission
finds that the agency fully complied with its order in EEOC Appeal
No. 01A03948. Accordingly, the Commission denies complainant's petition
for enforcement.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
For the Commission:
___________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-03-05_______________
Date
1 If petitioner believes the agency's stated
reasons for withdrawing his application from consideration were pretext
for unlawful discrimination, he may file a separate EEO complaint with
regard to this matter.
2 The Commission's order directed the agency to award petitioner a back
pay award �if complainant successfully completed the application process
and accepted an offer of employment with the agency.� Since petitioner
did not successfully complete the application process, he is not entitled
to a back pay award.