CHARLES W. STULL, JR., APPELLANT,
v.
JANET RENO, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, AGENCY.

Appeal Nos. 01941582, 01942827
Hearing No. 150-92-4313X
Agency No. F-91-4257-O

INTRODUCTION

On January 13, 1994, and March 29, 1994, Charles W. Stull, Jr., (appellant) initiated appeals to the Equal Employment Opportunity Commission (EEOC) from the final decisions of the Attorney General, Department of Justice (DOJ), Federal Bureau of Investigation (FBI), received on December 17, 1993, and March 10, 1994, respectively, concerning his equal employment opportunity (EEO) complaint. Appellant alleged that he was discriminated against because of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e etseq., and because of age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 etseq. The appeals are accepted by the Commission in accordance with the provisions of EEOC Order No. 960.001.

ISSUES PRESENTED

The issues presented are: (1) whether appellant has established by a preponderance of the evidence that the agency discriminated against him on the bases of sex (male) and age (46) when he was not selected for the position of Supervisory Special Agent, GM-14, on or about November 6, 1990; and (2) to what extent appellant is entitled to attorney's fees on account of the agency's failure to comply with a discovery order.

CONTENTIONS ON APPEAL

Appellant contends on appeal, interalia, that the agency failed to produce evidence other than that accounted for by the administrative judge. Appellant contends that the record ought to be supplemented with this evidence, that an adverse inference should be drawn there from, and that the scope of the attorney's fees awarded should encompass "all of the documents which the agency refused to produce."

DOJ, which issued the final agency decision on behalf of its subagency, the FBI, raises no contentions on appeal. However, the FBI contends on appeal, interalia, that it should not be sanctioned for failure to produce evidence which it believes to be protected by the attorney client privilege, or which would not have assisted appellant's case in any event. The FBI further contends that appellant, as a White male and therefore a member of a class not historically discriminated against, should be held to a heightened standard to establish a primafacie case of sex discrimination.

BACKGROUND

In a complaint dated May 6, 1991, appellant, then a Special Agent, GS-13, with the FBI, alleged that the FBI discriminated against him as delineated in the statement "Issue Presented," supra. The FBI conducted an investigation and provided appellant with a copy of the Investigative Report (IR). Appellant timely requested a hearing before an EEOC administrative judge (AJ). Thereafter, the AJ issued a recommended decision (RD) finding no discrimination, received by DOJ on October 15, 1993. On December 14, 1993, DOJ1 adopted the finding in the RD and issued a final agency decision (FAD 1) of no discrimination, but modified the AJ's recommended sanction against the FBI for failure to comply with a discovery order.2 Appellant thereafter requested DOJ to reconsider its decision. While that request was pending, appellant timely appealed FAD 1 to the Commission (EEOC Appeal No. 01941582). On March 7, 1994, the agency issued another final agency decision (FAD 2) expanding the sanction against the FBI. Appellant timely appealed FAD 2. The two appeals are herein consolidated.

A. Non-Selection for Promotion

In September 1990, the FBI advertised a vacancy in the position of Supervisory Special Agent, GM-14, (the position) in the Jacksonville, Florida, District. The vacancy announcement stated that the position was "non-stationary," in other words, that the incumbent was subject to transfer after two years. The vacancy announcement further stated that candidates should have white-collar crime and applicant experience, and should also have experience either as a principal relief supervisor in the field or as a FBI Headquarters (FBIHQ) supervisor.3 Although the announcement did not so state, the manual for the FBI Career Development Program (CDP) specifies that qualified FBIHQ supervisors are to be given preference for non-stationary positions.

Appellant was then a principal relief supervisor for the Jacksonville District Office. He applied for the position, and was considered by the five-member Jacksonville Career Board (the Jacksonville Board). The Jacksonville Board referred appellant, Selectee (female, 41) and three other applicants (male, ages not specified) to the FBIHQ Mid-Level Career Board (the MLCB). The applicants' ages were not included in the information conveyed to the MLCB. The Jacksonville Board's top three recommendations were Applicant A, a field supervisor, and Applicants B and C, both FBIHQ supervisors. The MLCB, which was not bound by the recommendations of the Jacksonville Board, selected Selectee, a former FBIHQ supervisor with white-collar crime experience who was about to complete a tour with the FBIHQ Inspection Staff.

Appellant argued that he was better qualified than Selectee by virtue of having more years of experience, and because he often had acted as the "de facto" supervisor of the Jacksonville white-collar crime squad. Testimony by members of the Jacksonville Board and the MLCB reflects that the determinative factor of who would be "seriously" considered for the position was which applicants had FBIHQ supervisory experience. Members of the Jacksonville Board indicated that although appellant was qualified, they did not expect him to be selected since there were qualified applicants with FBIHQ experience also being referred.

Members of the Jacksonville Board testified that they were not subject to any outside influences in formulating their recommendations. Appellant argued that bias was shown by the statement of one member of the Jacksonville Board (Member A) to him that Selectee would be selected by the MLCB. Member A acknowledged that he stated he would "bet his next paycheck" that Selectee would be selected. He explained that he believed she would be selected because the FBI considers itself obligated to "find a home" for Supervisory Special agents completing inspection tours, and because the FBI wanted to increase the number of females in management and Selectee was the only female. Member A noted, however, that appellant, although well-qualified enough to warrant referral to the MLCB, would not have been selected anyway because he did not have FBIHQ supervisory experience, and there were three other qualified applicants (male) who did.

Appellant also argued that pretext was shown by a consultant's report on the CDP, prepared for the FBI's Legal Counsel, which revealed that of 93 non-stationary positions filled during a relevant time-frame, 48 were filled by field applicants and 45 were filled by FBIHQ applicants. However, the consultant who prepared the report testified at the hearing that for 30 of those positions, there were no FBIHQ applicants, leaving only 18 out of 93 non-stationary positions where field applicants were selected over FBIHQ applicants. The consultant further testified that the report did not indicate why the field applicants were selected in those cases, in other words, whether a disqualifying factor existed for the FBIHQ applicants in those cases.

Appellant further argued that females have been promoted faster than males. The record reflects that, for the two years preceding appellant's non-selection, female employees, who made up six percent of the applicant pool for GM-14 non-stationary positions, received 9.7 percent of the promotions, while male employees, who made up 94 percent of the applicant pool, received 90.3 percent of the promotions. The AJ found this disparity to be statistically insignificant. The record further reflects, with regard to age, that applicants aged 40 to 44 had a 10 percent probability of promotion, while applicants aged 45 to 49 had a 9.1 percent probability of promotion, the first and second-highest rates, respectively, among applicants of all ages.

Appellant also argued that the MLCB members were rated on "EEO" as an element which induced the members to select a female for the position, because the members' "EEO" ratings could affect their performance bonuses and career advancement. The Commission notes that such an element appears in the PARS. The descriptions of the various levels of performance achievable and the PARS reports for the MLCB members each reflect that the practices of a member in hiring, promoting, or otherwise advancing the careers of female and minority individuals is taken into account in the PARS rating.

B. Attorney's Fees Awarded As Sanction

Appellant requested to the FBI to produce documentary evidence including the Performance Appraisal and Recognition System (PARS) reports of the MLCB members. The record reflects some confusion during the pendency of this case on the part of appellant, the AJ, and the FBI as to whether and when this information had been produced. Ultimately, the AJ determined that the FBI failed to produce the requested information, despite her order directing it to do so. As a sanction, the AJ ordered the FBI to pay appellant's attorney's fees incurred in connection with compelling the production of the PARS reports. The AJ stated, in relevant part, "These attorney's fees shall be for any time spent after the original order to produce the reports was made on April 2, 1993, and should include time spent on conference calls, motions, letters, requests for adverse inferences or any other matters related to these documents."It is noted that the AJ did draw an adverse inference from the FBI's failure to produce the documents, but found that the adverse inference did not refute evidence that the MLCB was acting in accordance with established FBI practice by giving preference for a non-stationary position to an FBIHQ applicant. DOJ initially agreed to pay attorney's fees incurred in connection with the PARS reports as recommended by the AJ, but indicated that it would not pay fees incurred in connection with adverse inference requests since the adverse inference did not help appellant's case. DOJ subsequently stated that it would pay attorney's fees incurred by appellant in connection with his request for all of the withheld documents, but again indicated that it would not pay fees associated with adverse inference requests.

C. Contentions on Appeal

Appellant contends that, despite the AJ's order to do so, the FBI failed to produce five pieces of documentary evidence, and argues that the record should be reopened and supplemented with such evidence: (1) an October 30, 1989, internal memorandum authored by the FBI's Legal Counsel entitled, "Career Board Matters, Minority/Female Promotions and Assignments -- Career Development Program"; (2) an October 30, 1989, internal memorandum from FBI's Legal Counsel to the MLCB Chairman entitled, "The Propriety of Consideration of Age of Candidates in Promotion Decisions"; (3) a legal opinion prepared by an outside attorney for use by the FBI's Legal Counsel; (4) a November 1, 1989, memorandum from the agency's Legal Counsel to the chairman of the Senior Executive Service Career Board entitled "EEO Officer Attendance at Career Board Meetings"; (5) a December 7, 1989, document authored by the agency's Legal Counsel entitled, "Career Development Program, Recommendations of the SAC [Special Agent in Charge] for Promotional Decisions."Appellant further contends that an adverse inference should be drawn from the FBI's failure to produce these documents.

The FBI argues on appeal first, that appellant did not establish a primafacie case of sex discrimination, and further argues for the imposition of a "heightened standard" for White males to establish a primafacie case of race or sex discrimination. The FBI next contests appellant's request to reopen the record for production of the above-referenced documentary evidence, arguing that the evidence sought is protected by the attorney-client privilege. It is noted that the AJ in the instant case rejected the privilege argument; however, the FBI notes that in five other EEO cases all relating to the same selection action, it successfully asserted the attorney-client privilege and did not produce the evidence at issue. The FBI argues that it should not be sanctioned for failure to produce the evidence, since the evidence is protected by the attorney-client privilege and would not have assisted appellant in any event.

ANALYSIS AND FINDINGS

Before turning to the merits of appellant's complaint, it is necessary to address appellant's contentions that the record should be reopened and the FBI compelled to produce the five documents specified above, and that an adverse inference should be drawn from the FBI's failure to produce the documents. The Commission notes, however, that appellant's requests are, of necessity, mutually exclusive; if the FBI were compelled to produce the five documents, there would be no absence of evidence from which to draw an adverse inference. See 29 C.F.R. § 1614.109(d)(3).

In any event, the Commission finds that the AJ properly drew an adverse inference from the FBI's failure to produce the documents notwithstanding her order to do so. When a party fails to produce relevant evidence within its control, the failure to produce such evidence raises an inference that the evidence, if produced, would prove unfavorable to that party. E.g., International Union (UAW) v. NLRB, 459 F.2d 1329, 1335 (D.C. Cir. 1972). As expressed in Commission regulations, if a party, without good cause shown, refuses or fails to respond to discovery requests for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses approved by the AJ and in the control of that party, the AJ may draw an adverse inference that the requested evidence would have reflected unfavorably on the party failing to comply with the request. 29 C.F.R. § 1614.109(d)(3)(i); Crummer v. Dept. of Commerce, EEOC Appeal No. 01913933 (March 25, 1992). The FBI failed to produce five requested documents, asserting that the documents were protected by the attorney-client privilege, which it believed constituted "good cause shown." However, the burden of establishing the existence of this privilege rests with the party asserting the privilege. United States v. Lopez, 777 F.2d 543 (10th Cir. 1985). Here, the AJ found that the FBI did not provide adequate information about the nature and content of each document to establish the existence of the privilege.4 Upon review of the record, the Commission finds that the AJ properly exercised her discretion to draw an adverse inference from the FBI's failure to produce the requested documents.5 

Turning now to appellant's Title VII allegations, this case involves a complaint alleging employment discrimination based on sex and age. In any proceeding, either administrative or judicial, involving an allegation of discrimination, it is the burden of the complainant, appellant herein, to initially establish that there is some substance to his or her allegation. In order to accomplish this burden the complainant must establish a primafacie case of discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that the complainant must present a body of evidence such that, were it not rebutted, the trier of fact could conclude that unlawful discrimination did occur. The burden then shifts to the agency to articulate a legitimate, non-discriminatory explanation for its action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the agency need only produce evidence sufficient "to allow the trier of fact rationally to conclude" that the agency's action was not based on unlawful discrimination. Id. at 257. Once the agency has articulated such a reason, the question becomes whether the proffered explanation was the true reason for the agency's action, or merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). Although the burden of production, i.e., "going forward," may shift, the burden of persuasion, by a preponderance of the evidence, remains at all times on the complainant. Burdine, supra, at 256.This analysis, developed in the context of Title VII proceedings, also applies to cases arising under the ADEA. Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).

In the non-selection context, a primafacie case of sex or age discrimination may be established by showing that: 1) appellant was a member of the protected group; 2) appellant was qualified for the position sought; and 3) a person outside of the protected group, or substantially younger than appellant, was selected for the position. See McDonnell-Douglas Corp., supra; Potter v. Goodwill Industries of Cleveland, Inc., 518 F.2d 864, 865 (6th Cir. 1975). The Commission rejects the FBI's contention that appellant, as a White male, should be subject to a heightened standard to establish a primafacie case of sex discrimination.

Appellant has established a primafacie case of sex discrimination. Appellant is a member of the protected group, sex (male); he was qualified for the position, as evidenced by his referral to the MLCB; and he was not selected in favor of Selectee (female). However, appellant has not established a primafacie case of age discrimination. Appellant is a member of the protected group, age (over 40), and he was qualified for the position. However, appellant was not selected in favor of a person who is a member of his protected group. Further, Selectee, age 41, is not substantially younger than appellant, age 46, for purposes of establishing a primafacie case.6

Now that appellant has established a primafacie case of sex discrimination, the burden shifts back to the FBI to articulate a legitimate, nondiscriminatory explanation for its decision not to select appellant. The Commission notes that the FBI's burden of production is not a heavy burden. The FBI need not, at this point, present evidence sufficient to establish its actual motivation. Rather, the FBI need only present evidence sufficient to raise a genuine issue of material fact as to whether it discriminated against appellant. Burdine, 450 U.S. at 254.The FBI must, however, "frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions."Id.

The FBI explained, through the testimony of MLCB members, that because there were qualified applicants who possessed the preferred FBIHQ supervisory experience, appellant, a field applicant, was not seriously considered by the MLCB for the position. Both MLCB members and Jacksonville Board members indicated that FBIHQ applicants received preference for non-stationary positions, an established practice set out in FBI promotion guidelines. The Commission finds that this explanation is sufficient to meet the agency's burden.

The burden now shifts back to appellant to establish that the agency's proffered explanation was not the true reason for its actions, but was merely a pretext for sex discrimination.

Appellant may establish pretext by showing that the alleged discriminating officials more likely than not were motivated by discriminatory animus. See St. Mary's Honor Center v. Hicks, supra.

In an attempt to show that the proffered explanation is false, appellant pointed to a consultant's report which stated that, during a relevant time frame, 48 of 93 vacant non-stationary positions were filled by field applicants rather than FBIHQ applicants. However, the consultant testified that for 30 of the 48 positions, there were no FBIHQ applicants, meaning that field applicants prevailed in only 18 of 93 vacancies where there were FBIHQ applicants available. The consultant also noted that the report did not explain what other factors may have influenced the selection process. The Commission finds that this evidence does not establish that the agency's proffered explanation, that FBIHQ applicants are preferred for non-stationary positions, was pretextual.

Appellant attempted to show sex-discriminatory animus by arguing that females are promoted faster than males. The record reflects that, for the two years preceding appellant's non-selection, female employees, who made up 6.0 percent of the applicant pool for GM-14 non-stationary positions, received 9.7 percent of the promotions, while male employees, who made up 94 percent of the applicant pool, received 90.3 percent of the promotions. The Commission notes that this statistic establishes only that females are promoted in slightly greater proportion than males; it does not address the speed of females' career progression relative to males' career progression. The Commission finds that this evidence does not establish pretext.

Appellant also attempted to show sex-discriminatory animus by arguing that since the MLCB members are rated on "Affirmative Action," and ratings for this element affect the members' overall PARS ratings and performance awards, the MLCB members have a vested interest in promoting the careers of females and minority individuals. This circumstance does not alter the fact that appellant did not possess the preferred qualification, which Selectee did possess; the Commission finds that this evidence does not establish pretext.

Similarly, appellant also argued that sex-discriminatory animus was shown by Jacksonville Board Member A's statement that he would bet his paycheck that Selectee would be promoted because the FBI wanted to increase the number of females in management. The Commission notes first that discriminatory animus is not shown by Member A's statement. Member A was not a member of the MLCB, which actually selected Selectee, and which was not bound by the recommendations of the Jacksonville Board. Further, Member A also stated that appellant would not have been selected in any event. Member A noted his belief that Selectee would be selected because she was about to finish an inspection tour, and the FBI feels obligated to place such employees at the tour's end. Further, Member A noted his belief that appellant would not have been selected in any event because there were other qualified (male) FBIHQ applicants available. The Commission finds that this evidence does not establish pretext.

Finally, the Commission notes that the AJ drew an adverse inference from the FBI's failure to produce requested documents which appellant alleged would show that FBI officials do consider the sex and age of applicants for a position in reaching their selection. However, she found, and the Commission agrees, that even taking appellant's allegations as true, the evidence still does not establish that appellant was nonselected on account of his sex or age. Rather, with regard to the basis of sex, testimony of record establishes that appellant was not given serious consideration for the position because he lacked the desired qualification of FBIHQ experience. More specifically, Member A testified that regardless of Selectee's sex, appellant would not have been selected anyway because there were three qualified male applicants who had the FBIHQ experience which appellant lacked. Further, with regard to the basis of age, the record reflects that the MLCB was not informed of the applicants' ages prior to the selection at issue, and therefore could not consider the relative ages of the applicants.

The Commission must now address the scope of the attorney's fees payable to appellant as a sanction for the FBI's failure to produce evidence despite the AJ's order to do so. The Commission notes that DOJ has already stated in FAD 1 and FAD 2 that it will pay the attorney's fees incurred by appellant in connection with his efforts to obtain all of the withheld evidence cited above: specifically, the five contested documents and the PARS reports. These decisions have not been rescinded, and the FBI may not relitigate this matter on appeal. See, for example, Rousseau v. Dept. of Education, EEOC Appeal No. 01920410 (January 21, 1992) (agency bound by findings in the FAD). However, the Commission notes that DOJ stated that it will not pay the attorney's fees incurred in connection with appellant's efforts to have an adverse inference drawn from the agency's failure to produce, since no adverse inference was drawn. The Commission finds that the agency's conclusion is incorrect, and the limitation improper. Although appellant ultimately did not prevail on his complaint, the AJ did, in fact, draw an adverse inference from the agency's failure to produce the requested documents. Further, unlike the situation where attorney's fees are awarded pursuant to 29 C.F.R. § 1614.501(e) to a complainant who prevails on the merits, 29 C.F.R. § 1614.109(d)(3) pertaining to sanctions for non-compliance in discovery contains no such "prevailing" requirement. Whether appellant succeeded in having an adverse inference drawn, and whether such adverse inference ultimately led him to prevail, is therefore irrelevant. Had the FBI complied with the AJ's order to produce the requested documents, appellant's attorney need not have expended any efforts to have an adverse inference drawn. Since the attempt to have an adverse inference drawn was a reasonably foreseeable consequence of the FBI's failure to produce, the Commission finds it appropriate that the attorney's fees sanction include those fees incurred in connection with the attempt to have an adverse inference drawn. The Commission notes that appellant is also entitled to reasonable attorney's fees incurred in connection with the instant appeal, but only to the extent that such fees pertain to the scope of attorney's fees awarded as a sanction. See Smith v. Dept. of Transportation, EEOC Appeal No. 01940320 (February 24, 1994); Work v. USPS, EEOC Appeal No. 01920209 (May 8, 1992).

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to MODIFY the final agency decision to reflect the proper scope of the attorney's fees sanction, and as modified, to AFFIRM the attorney's fees sanction and the finding that appellant has not proved that he was discriminated against based on sex and age, as alleged.

ORDER

The agency is ordered to take the following action:

(1) The agency shall pay appellant's attorney's fees incurred in connection with the FBI's failure to produce, pursuant to an order of the AJ, the five documents at issue herein. Such fees shall be payable for time spent on conference calls, motions, letters, requests for adverse inferences or any other matters related to these documents, and for time spent on the instant appeal to the extent that the fees requested pertain to services rendered in connection with the scope of attorney's fees awarded as a sanction.
The attorney shall submit a verified statement of fees to the agency within thirty (30) calendar days of the date on which this decision becomes final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. §1614.501.

(2) The agency is further directed to submit a report of compliance, as provided in the statement entitled, "Implementation of the Commission's Decision." The report shall include supporting documentation of the agency's calculation of the attorney's fees payable.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1092)

Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant.

RECONSIDERATION (M1092)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUSTBEFILEDWITHINTHIRTY (30) CALENDARDAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHINTWENTY (20) CALENDARDAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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 etseq.; 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:

Frances M. Hart
Executive Officer
Executive Secretariat

June 15, 1995

1. The Commission notes that the final agency decisions in this case were issued by the Complaint Adjudication Officer of DOJ, the FBI's parent agency.

2. This matter is set out in greater detail, infra.

3. Applicants having these types of experience also are referred to herein as "field applicants" and "FBIHQ applicants," respectively.

4. In the main, the FBI argued for a finding of attorney-client privilege on the ground that it had successfully asserted the privilege in other, related cases.

5. The Commission notes that at least one of the requested documents, the legal opinion prepared by an outside attorney for use by the FBI's Legal Counsel, does appear to fall within the protection of the attorney-client privilege. However, given that the existence of the privilege is not readily apparent and was not proved by the FBI as to the remaining four documents, the possible existence of the privilege with regard to the fifth document does not compel a different outcome in this case.

6. The Commission notes, in any event, that the ages of the applicants were not included in the information provided to the MLCB.