01A00493
06-24-2002
Edwin F. Preston, Jr., Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Edwin F. Preston, Jr. v. National Security Agency
01A00493
June 24, 2002
.
Edwin F. Preston, Jr.,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01A00493
Agency No. 98-033
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleges discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., on the bases
of race (White), sex (male), disability (spinal surgery), and age (47)
when: (1) on May 22, 1998, he learned that he had not been recommended
for promotion, and subsequently was not promoted to GG-13 in the second
or third quarter of fiscal year 1998; and (2) on May 26, 1998, he was
notified, via e-mail, of his transfer from a collection position to an
analytic position without prior notification or explanation.
On appeal, complainant argues generally that he possessed many outstanding
qualities and, accordingly, should have been recommended for promotion.
However, complainant fails to directly address management's stated
reasons for not recommending complainant for promotion. Accordingly,
we do not find sufficient proof of pretext. Complainant also argues
that there are unsigned affidavits in the investigative file that
should not be relied upon. In response to complainant's appeal, the
agency does submit those affidavits with signatures. Since the facts
presented in the unsigned and signed affidavits are the same, we find
the failure to provide signatures during the EEO investigation harmless.
Complainant was provided specific information sufficient to allow him
an opportunity to prove pretext during the EEO investigation.
Complainant also asserts that the agency's Chief of Discrimination and
Counseling Branch intentionally gave him bad advice so that he did not
hire a lawyer or request a hearing before an EEOC Administrative Judge
(AJ). Specifically, complainant asserts that he was advised to stay away
from lawyers, in general and a specific lawyer who was later discovered
to be quite successful in representing complainants. In addition,
complainant asserts that he was told that the agency preferred to keep
these matter �in house.� Further, complainant alleges that he was told
that the EEO investigation would take longer if it were to be assigned
to an AJ for a hearing. Complainant asserts that without a lawyer,
he was unable to analyze his choices fairly. Complainant asserts that
he was improperly steered toward an �in house investigation� thereby
prejudicing his due process rights. To the extent that complainant
argues that he was improperly denied a lawyer or a hearing before an AJ,
we find the record insufficient to proving this allegation. Aside from
complainant's assertions, the record fully supports the conclusion
that he was given written hearing rights in a timely manner and that
he requested a FAD in writing. There is no corroborating evidence to
support complainant's assertions. Accordingly, we find that complainant
knowingly requested a FAD instead of a hearing.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the agency's
final decision because the preponderance of the evidence of record does
not establish that discrimination occurred.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (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
June 24, 2002
__________________
Date
1 For the purpose of this decision, we assume without deciding, that
complainant has established that he is a qualified individual with a
disability under the Rehabilitation Act.