01A21717_r
04-14-2003
Michael E. Prokopchak, Complainant, v. Lieutenant General Michael V. Hayden, Director, National Security Agency, Agency.
Michael E. Prokopchak v. National Security Agency
01A21717
April 14, 2003
.
Michael E. Prokopchak,
Complainant,
v.
Lieutenant General Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01A21717
Agency No. 01-007
DECISION
Complainant initiated contact with the agency's EEO Office on November
17, 2000. In an EEO complaint dated January 17, 2001, complainant claimed
that he was discriminated against on the bases of his race (Caucasian),
sex (male), and age (54) when: (1) he was not promoted to the GG-14 grade
level during the period of July 7, 1995 to December 2, 2000; and (2)
when his supervisor told him in October 2000 that he would not recommend
him for promotion during the Fiscal Year 2001 promotion cycle.
The record reveals that complainant retired from employment with the
agency effective December 2, 2000. On December 4, 2001, the agency
compiled its list of personnel eligible for promotion in Fiscal Year 2001.
Complainant was not included on the list and was not considered for
promotion in Fiscal Year 2001. In March 2001, the agency published its
list of personnel promoted to the GG-14 level.
By decision dated March 6, 2001, the agency dismissed claim (1) of the
complaint on the grounds that complainant failed to initiate contact
with an EEO Counselor in a timely manner. The agency accepted claim
(2) for investigation.
Subsequent to its completion of the investigation, the agency issued
a decision dated January 22, 2002, wherein it dismissed claim (2)
of the complaint pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds
of failure to state a claim. The agency determined that complainant's
retirement rendered him ineligible for consideration during the promotion
deliberations for Fiscal Year 2001. The agency also dismissed claim
(2) pursuant to 29 C.F.R. �1614.107(a)(5) on the grounds that the claim
alleges a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory. According to
the agency, the conversation between complainant and his supervisor
in October 2000 may have been a preliminary consideration to taking
a personnel action, but the personnel action did not occur until the
list of promoted personnel was announced in March 2001. Thereafter,
complainant filed the instant appeal.
In response, the agency asserts with regard to claim (1) and complainant's
EEO contact of November 17, 2000, that complainant indicated in his
complaint that he suspected discrimination against White males over fifty
years of age since his non-promotion in 1995. The agency maintains that
complainant's non-promotion in Fiscal Year 2001 can not be utilized to
make the previous non-promotions timely since each promotion cycle is a
distinct and separate event. The agency further asserts that from 1995
until complainant's retirement in December 2000, there were numerous
changes in the membership of the promotion boards that considered
complainant for promotion.
With regard to claim (2), the agency states that approval of Fiscal Year
2001 promotions to the GG-14 level were effected after complainant's
departure from the agency. The agency states that complainant's
supervisor's promotion recommendation would only have been a preliminary
step in its promotion deliberations. According to the agency, in Fiscal
Year 2001, regardless of whether a candidate was recommended for promotion
by his or her immediate supervisor, at least one promotion board would
conduct a zero based review of all eligible promotion candidates to
determine which candidates the board would recommend for promotion.
The agency argues that complainant's retirement removed him from promotion
consideration.
With regard to claim (1), the Commission agrees with the agency
that complainant was untimely in his EEO contact. Complainant has
failed to indicate any action that occurred within 45 days of his EEO
Counselor contact. The record indicates that complainant should have
had a reasonable suspicion of discrimination more than 45 days before
he initiated contact with an EEO Counselor. Complainant stated in his
complaint that over the past five years, he had been informed on numerous
occasions by his supervisors and higher level managers that he did not
fit the promotion profile. Complainant stated that the implied profile
involved promoting personnel under fifty years of age who are non-white
males. Complainant does not contend that he only recently suspected
the existence of such a profile. We find that complainant's contact
of an EEO Counselor on March 17, 2000, was more than 45 days after the
alleged non-promotions referenced in claim (1), and that complainant has
failed to submit adequate justification for an extension of the 45-day
limitation period. Accordingly, the agency's decision dismissing claim
(1) of the complaint was proper pursuant to 29 C.F.R. �1614.107(a)(2)
and is AFFIRMED.
With regard to claim (2), the alleged act of telling complainant that he
would not be recommended for promotion was no more than a preliminary
step to the actual personnel action of not promoting complainant.
Complainant's retirement prior to the agency's compilation of personnel
eligible for promotion precluded complainant from being considered for
promotion. We find that claim (2) fails to state a claim in light of the
fact that complainant was no longer an agency employee when both the list
of eligible candidates was compiled and when the promotions were effected.
Accordingly, the agency's decision dismissing claim (2) of the complaint
was proper pursuant to 29 C.F.R. �1614.107(a)(1) and is AFFIRMED.
Thus, the agency's decision dismissing the complaint is AFFIRMED.
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
April 14, 2003
__________________
Date