0120073229
04-08-2009
Aileen A. Judd, Complainant, v. LTG Keith B. Alexander, Director, National Security Agency, Agency.
Aileen A. Judd,
Complainant,
v.
LTG Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120073229
Agency No. 07-012
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated June 8, 2007, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Upon
review, the Commission finds that complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. In a complaint dated May 2, 2007, complainant alleged that
she was subjected to discrimination on the basis of sex (female) when:
1. S1 provided no guidance regarding the 2006 performance evaluations
(P3);
2. S1 did not complete complainant's P3 and P3's of other women in
the office in a timely manner;
3. S1 added written comments to complainant's P3 without her
knowledge, and after it had been signed; and
4. S1 called a meeting to intimidate complainant and the agency
official rating complainant's P3.
The record reveals that complainant received a rating of "Greatly Exceeded
Objectives (4.60-5.00)" for her P3 evaluation for 2006. The evaluation
is signed by both the rating official and the reviewing official (S1).
The following hand-written comment appears under S1's signature:
"[Complainant] is a talented, technically astute, division-level leader.
However, I do not concur with all the performance ratings based on my
observations during this evaluation period."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In the instant case, we find that complainant's numerical rating,
though not consistent with S1's comments, was assigned the highest
performance level possible. We concur with the agency that complainant
has not shown she suffered any adverse action, nor any harm from any of
the actions described in claims (1) through (4). The Commission finds
that the complaint fails to state a claim under the EEOC regulations
because complainant failed to show that she suffered harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Accordingly, the agency's final decision
dismissing complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 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 (S0408)
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 (Z1008)
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
April 8, 2009
__________________
Date
2
0120073229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120073229