01994408_r
07-26-2001
Joseph B. Flint, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Joseph B. Flint v. National Security Agency
01994408
July 26, 2001
.
Joseph B. Flint,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01994408
Agency No. 99-018
DECISION
Review of the Commission's record reveals that complainant filed a formal
complaint in August 1998 (Agency No. 98-098) claiming discrimination
based on reprisal, contending that the agency failed to utilize him in
the same manner as other technical leaders. The agency accepted that
complaint for investigation (herein referred to as complaint 1). Next,
complainant filed the instant complaint (herein referred to as complaint
2), dated January 6, 1999, wherein he alleged discrimination on the bases
of race, sex, and in reprisal for prior protected activity, contending
that his Personal Performance Process (P3) plan was not entered into
the system by the October 1, 1998 deadline.
In an April 9, 1999 decision, the agency dismissed complaint 2 on the
grounds that the same issue was being investigated in conjunction with
complaint 1. Complainant filed the instant appeal on May 6, 1999.
In a letter dated July 1, 1999, the agency, in effect, rescinded
its dismissal of complaint 2, and then formally consolidated it with
complaint 1. The agency indicated that the issues in both cases would
be addressed in a single investigation, and provided complainant with
fourteen (14) days to set forth any objections. In correspondence
dated July 2, 1999, mailed to the Commission with a copy to the
agency, while complainant acknowledges his prior informal consent
to the proposed consolidation, he now objects to the consolidation,
arguing that the agency had since reneged on its assurance that it would
conduct a supplemental investigation of complaint 2 upon consolidation.
Complainant then specifically declines to withdraw the instant appeal.
In response, via argument and evidence received at the Commission in
August 1999, with a copy to complainant's attorney, the agency argues
that complainant reneged on his verbal (telephonic) agreement to permit
the consolidation and withdraw the instant appeal. The agency also
maintains that it fully and fairly investigated the issue in complaint
2, rendering the instant appeal moot. In the alternative, the agency
argues that the appeal should be dismissed on the grounds that complaint
2 was addressed in the investigation of complaint 1, as well as on the
additional alternative grounds that complainant failed to state a claim
regarding complaint 2 because there is no demonstration that complainant
was aggrieved.
In argument and evidence dated September 20, 1999, submitted to the
Commission with a copy to the agency, complainant responded to the
agency's August 1999 statement. In pertinent part, complainant again
avers that the investigation was �skimpy,� and additionally argues that
complaint 2 states a claim because the lack of a P3 precluded him from
effectively competing for promotions.
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).
Here, complainant argues that the lack of a P3 in the system effectively
precluded him from being selected for promotion. However, complainant
fails to identify any pertinent promotions for which he was not selected
because of the lack of a P3 in the system. As such, we find that the
harm claimed by complainant is merely speculative, and is not sufficient
to render him aggrieved under the legal standard described above.
Accordingly, for the reasons stated above, we AFFIRM the agency's
dismissal of the instant complaint.
Because we affirm the agency's decision to dismiss the complaint for
the reason stated herein, we find it unnecessary to address the agency's
alternative grounds for dismissal.
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
July 26, 2001
__________________
Date