0120110788
03-13-2012
Corey J. Brown, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Corey J. Brown,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120110788
Agency No. FBI-2008-00150
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated October 8, 2010, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In his complaint, dated June 10, 2009, Complainant alleged discrimination
based on race (African – American) when on April 27, 2009, he failed a
pre-employment polygraph because of the FBI examiner’s discriminatory
animus against him and as a result, his conditional offer of employment
with the FBI was withdrawn. After completion of the investigation of
the complaint, Complainant requested a final Agency decision without
a hearing. The Agency thus issued its final Agency decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, assuming arguendo that Complainant had
established a prima facie case of discrimination, we find that the
Agency has articulated legitimate, nondiscriminatory reasons for the
alleged incident. Complainant claimed that when the identified FBI
polygraph examiner asked him about his drug use he was worried because
of the deviation from the videotape policy and the questions about
his upbringing, i.e., his being raised by a single mother in Oakland,
California. Despite Complainant’s claim, the examiner, identified by
Complainant, stated that FBI polygraph interviews and exams were never
monitored or recorded. The examiner also stated that Complainant’s
initial test showed inconclusive answers to the drug questions, and
his second test was indicative of deception. The examiner indicated
that during their discussion about the drug question, Complainant told
him that he had “transported a package across the street from one
individual to another” which, he felt, was related to Complainant’s
involvement with drugs.
The Agency’s Supervisory Special Agent who had been a FBI polygraph
examiner since April 1996, and conducted over 1,200 polygraph exams
indicated that he performed quality control on approximately 100 polygraph
exams a month, and reviewed over 9,000 exams over the course of his
career. Specifically, the Special Agent indicated that on April 30,
2009, he reviewed Complainant’s polygraph exam without being informed
of his race. After a review, he found Complainant’s first answers
were inconclusive and the second ones were indicative of deception.
The Special Agent further stated that he then reviewed the examiner’s
findings which were the same as his and, thus, concluded no further
review was necessary. The Special Agent indicated that he found nothing
improper about the examiner’s questioning about Complainant’s personal
questions or other related questions and the manner in which the examiner
tested him. Complainant failed the pre-employment polygraph exam.
The Agency, thus, withdrew the conditional offer of Complainant’s
employment at the Agency on May 1, 2009.
After a review of the record, we find that Complainant failed to
show that he was treated less favorably than a similarly situated
employee under similar circumstances. Furthermore, we note that despite
Complainant’s contentions, the Agency stated that his subsequent passing
of the polygraph exam for the Secret Service did not demonstrate the FBI
polygraph exam was discriminatory. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated
by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
3/13/12
__________________
Date
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0120110788
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110788