01994687
02-06-2001
Tillie A. Lynn, Complainant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Council, Agency.
Tillie A. Lynn v. National Security Agency
01994687
February 6, 2001
.
Tillie A. Lynn,
Complainant,
v.
Lt. Gen. Kenneth A. Minihan,
Director,
National Security Council,
Agency.
Appeal No. 01994687
Agency No. 99-027
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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.; Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
In a complaint dated April 15, 1999, complainant claimed she
was discriminated against based on disability, age and reprisal.
Specifically, complainant claimed that on April 13, 1999, she received
a P3 mid-cycle review which she believed was unfair because she received
a low rating and was allegedly rated on objectives that had not been
reviewed.
On May 3, 1999, the agency issued a final decision dismissing the
complaint, pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds that
the mid-cycle review is a preliminary step to taking a personnel action.
The agency noted that the review does not become a rating of record and
is not included in complainant's promotion folder.
On appeal, complainant argues that the mid-cycle review is being used
to terminate her tenure at the agency. She contends that an email will
show that the review is part of her S2 (Personnel) records and �will be
used as a stepping stone to determine my P3 evaluation.�
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. In the Section by Section Analysis that
accompanied the 1992 issuance of EEOC Regulations 29 C.F.R. � 1614,
the Commission explained that:
We intend [Section 1614.107(e)] to require dismissal of complaints that
allege discrimination in any preliminary steps that do not, without
further action, affect the person; for example, progress reviews or
improvement periods that are not a part of any official file on the
employee.
See 57 Fed. Reg. 12643 (April 10, 1992); Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994); Blumner v. Equal
Employment Opportunity Commission, EEOC Appeal No. 01952640 (January
19, 1996). When determining whether a record is in "any official file
on the employee," the concern is "with official records which could be
available to personnel other than the personnel responsible for the
challenged act." Jackson, supra (citation omitted). Here, we agree
with the agency that the mid-cycle review, without further action, does
not affect a term, condition, or privilege of complainant's employment.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 6, 2001
__________________
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.