Joseph B. Flint, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense (National Security Agency), Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
05a00909 (E.E.O.C. Feb. 15, 2001)

05a00909

02-15-2001

Joseph B. Flint, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (National Security Agency), Agency.


Joseph B. Flint v. Department of Defense (National Security Agency)

05A00909

02-15-01

.

Joseph B. Flint,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense

(National Security Agency),

Agency.

Request No. 05A00909

Appeal No. 01A01401

Agency No. 98-035

DECISION ON REQUEST TO RECONSIDER

On June 16, 2000, Joseph B. Flint (complainant) timely initiated a request

to the Equal Employment Opportunity Commission to reconsider the decision

in Joseph B. Flint v. William S. Cohen, Secretary, Department of Defense

(National Security Agency), EEOC Appeal No. 01A01401 (June 9, 2000).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous decision where the party demonstrates that:

(1) the previous decision involved a clearly erroneous interpretation of

material fact or law; or (2) the decision will have a substantial impact

on the policies, practices or operation of the agency. 29 C.F.R. �

1614.405(b).<1> For the reasons set forth below, the complainant's

request is denied.

The issue presented is whether complainant's request meets the criteria

for reconsideration of the previous decision.

Complainant filed his formal complaint in August 1998, alleging

discrimination based on reprisal for prior EEO activity<2> when he

discovered that he was not utilized the same as other technical leaders.

The agency issued its final agency decision (FAD) on October 13, 1999,

finding no discrimination, and that decision was affirmed on appeal.

Complainant worked as the Technical Leader in M--- Branch. In June 1998,

complainant asked other Technical Leaders in other branches about the

scope of their duties, and he concluded that he was being underutilized.

Specifically, complainant claimed that he was not given meaningful work,

was not assigned TDYs or to meet with customers, that he was "pushed

downstairs" to another unit, and that he was not provided with a Personal

Performance Process (P3). He contended that he experienced retaliation

and that reports from the Office of Inspector General (OIG) identify

the persons responsible for the retaliation; complainant speculated

that a former supervisor had retaliated against him based on the former

supervisor's alleged contradictory statements.

In response, the agency stated that complainant's position required

some initiation of work products and that it provided suggestions

and proposals to complainant but that he failed to develop projects

or tasks. For this reason, as well as personality clashes with others,

he was moved to a different area. Also, the agency denied that he was

not given support, an opportunity for contact with clients and TDYs,

or that it acted in retaliation.

Complainant has filed a request that the Commission reconsider the

previous decision. He stated that no reasoning was offered in the

prior decision and that his complainant concerned acts of reprisal

and not retaliation. In order to merit the reconsideration of a prior

Commission decision, the requesting party must submit written argument

that tends to establish that at least one of the criteria of 29 C.F.R.

� 1614.405(b) is met. The Commission's scope of review on a request

for reconsideration is narrow, and it is not a form of second appeal.

Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September

28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7,

1990).

Complainant is advised that his appeal was given a de novo review

as required by Commission regulations and that the record and all

statements submitted on appeal were reviewed. 29 C.F.R. � 1614.405(a).

In addition, for complainant's information, the Commission uses reprisal

and retaliation interchangeably, both referring to an act taken in

response to a protected action.

As to the merits of complainant's claim, we find that the agency did

not discriminate against him. Even if he established a prima facie case

of discrimination based on reprisal, complainant did not demonstrate

that the agency's reasons for its actions were pretextual, that is,

based on discriminatory factors or animus.

CONCLUSION

After a review of the complainant's request for reconsideration, the

agency's reply thereto, the previous decision, and the entire record,

the Commission finds that the complainant's request fails to meet any

of the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of

the Commission to deny the complainant's request. The decision of

the Commission in EEOC Appeal No. 01A01401 (June 9, 2000) remains

the Commission's final decision. There is no further right of

administrative appeal from a decision of the Commission on a request

for reconsideration.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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

___02-15-01_______________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Complainant previously filed complaints of discrimination in June

1996 and February 1997, alleging violations of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621

et seq.