0120083863
06-03-2010
__________________, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
__________________,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120083863
Agency No. 06-005
DECISION
On September 11, 2008, complainant filed an appeal from the agency's
August 8, 2008 final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Global Network Exploitation and Vulnerability Analyst at the agency's
Meade Operations Center facility in Fort Meade, Maryland.
On November 25, 2005, complainant filed an EEO complaint alleging that she
was discriminated against on the basis of reprisal for prior protected
EEO activity when: complainant was harassed by representatives of the
Office of Security and Office of General Counsel (OGC) in July 2005.
The agency issued a final decision on August 8, 2008, finding complainant
failed to establish that she had been subjected to discrimination.
Complainant filed an appeal from the agency's decision.
Complainant claimed she was subjected to discrimination when she
was denied entry to the agency on July 6, July 28 and July 29, 2005.
Complainant stated that she had been on leave for months prior to the
incidents identified in the present complaint. Under the Family Medical
Leave Act (FMLA) complainant was approved to take Leave Without Pay (LWOP)
beginning May 10, 2005, not to exceed July 28, 2005. During complainant's
leave, she participated in negotiations of a settlement with the agency
in connection with three pending EEO complaints.
On July 5, 2005, complainant's doctor signed a return to duty
authorization which authorized complainant to work part-time beginning
July 6, 2005. Complainant reported to the agency on July 6, 2005, and
was denied access to the agency. Complainant's badge was confiscated
and she was escorted to her car by an armed police officer. Complainant
stated that an OGC attorney told her that she needed to return to work
when her FMLA leave ran out, which was July 28, 2005, or she would face
adverse action. Complainant stated that she attempted to return to work
on July 28 and July 29, 2005, and was denied entry. Complainant was
escorted off the agency premises.
Complainant's three prior EEO complaints were pending before an EEOC
Administrative Judge (AJ) when they were resolved by a settlement
agreement executed on August 2, 2005. The settlement agreement provided
that complainant would return to her usual place of employment on August
2, 2005, under a four-hour per day work schedule for the first fifteen
days, and a full-time schedule thereafter. The record reveals that
complainant returned to work on August 2, 2005.
The agency issued a final decision on August 8, 2008. The agency
determined complainant failed to show that she was subjected to a hostile
work environment because of her protected EEO activity.
On appeal, complainant states that in the cover letter to the agency's
Report of Investigation (ROI), the agency acknowledges that complainant
requested a hearing before an EEOC AJ. Complainant states that despite
several attempts she was never afforded a hearing. Moreover, complainant
states that after she attempted to return to work in July 2005, neither
she nor her attorney were referred to HR or OHESS for an explanation of
why her access to the facility was denied or what steps she needed to
take to have her access restored.
In response to complainant's appeal, the agency notes that complainant
was aware of her right to have a hearing on her case before an EEOC AJ,
as this was her fourth EEO complaint in the past four years. The agency
states there is no evidence that complainant ever timely submitted a
request for a hearing with the appropriate EEOC district office. The
agency supplied an affidavit from Person C, Chief Office of Discrimination
Complaints, Equal Employment Opportunity and Diversity (EEOD), who
stated that in June 2008, the agency's EEOD office was contacted by a
representative from complainant's attorney to inquire about the hearing
date for complainant. Person C states she contacted the EEOC's Office of
Federal Operations and spoke with a compliance officer who advised that
there was no record that complainant had requested a hearing in this case.
Person C notes that the compliance officer informed complainant's attorney
the same information. Additionally, the agency reiterates the arguments
set forth in its final decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
At the outset, we address complainant's contention that she was improperly
denied a hearing on her complaint before an EEOC AJ. Complainant does
not indicate when she allegedly requested a hearing or state where she
submitted any purported hearing request. Rather, complainant states that
the cover letter to the ROI is evidence that she requested a hearing
on her complaint. On appeal, the agency states that the cover letter
to the ROI was a form letter and notes that the agency failed to alter
this letter to reflect that complainant did not request a hearing on her
complaint. We note complainant does not contend that she was unaware of
the time limits or procedures for filing a proper request for a hearing.
Moreover, the record reveals that complainant had previously filed
three EEO complaints which were pending before an EEOC AJ when they
were settled on August 1, 2005. Upon review of the record, there is no
evidence that complainant timely submitted a request for a hearing on
the subject complaint and we find the agency did not act improperly by
issuing a final decision on this complaint.
In the present case, complainant claimed that she was subjected to
harassment when she was denied entry to the agency facilities on July
6, 2005, July 28, 2005 and July 29, 2005. Complainant stated that
she was stripped of her badge and escorted from the premises by armed
police officers. As a result, she stated that she was forced to use
additional LWOP. Person A, Chief of the Special Actions Branch, noted
that complainant had been approved for extended sick leave from February
20, 2005, through July 29, 2005, which he stated would have precluded
her need to enter the building. Person A noted that despite the fact
that complainant was on extended sick leave, she was found to be in the
workplace at 5:30 a.m. on March 14, 2005, and her badge was flagged no
entry. Person A stated that given her extended leave, she would not be
allowed to enter the building until the Office of Occupational Health,
Environmental and Safety Services (OHESS) determined she was fit for
duty, or if she was coming in for an official medical or security visit.
Person A noted that on July 6, 2005, complainant was denied access to the
building and her badge was confiscated. Person A stated that when he
received a call from complainant's attorney on July 6, 2005, inquiring
why complainant could not return to work he told complainant could not
return until the agency had documentation that she was cleared by Human
Resources and OHESS. Moreover, Person B, complainant's first-level
supervisor during the relevant time stated that the procedure for
employees returning to work after an extended absence was "to report to
OHESS and obtain a return to duty memo."
The record contains a memorandum entitled Family Medical Leave
Act-Information Memorandum granting complainant's request for LWOP under
the FMLA from May 10, 2005, through July 27, 2005. This memorandum
stated that complainant was expected to return to work on July 28, 2005.
The memorandum noted that individuals on leave for less than six months
are required to relinquish their badge for storage and stated that two
weeks prior to return to duty, individuals are to initiate retrieval of
their badge. The memorandum also stated that because complainant was
on extended leave for medical reasons she was to check with the Medical
Center upon her return to duty. Complainant did not comply with the
terms of the memorandum and retained her badge throughout her leave.
Moreover, complainant did not contact the agency two weeks before her
attempted return to duty on July 6, 2005.
The record reveals that complainant provided Human Resources with a note
dated July 5, 2005, from her psychiatrist releasing complainant to return
to part-time duty on July 6, 2005. The agency stated that providing Human
Resources with a return to duty note on July 5, 2005, would not have
given the agency sufficient time to return complainant to duty on July
6, 2005. The agency noted that its handling of this situation did not
deviate from the agency's standard policies and procedures. Moreover,
the record reveals that when complainant attempted to return to duty
on July 28, 2005, and July 29, 2005, she had not yet been cleared to
return to work. Upon review, we find complainant failed to show by a
preponderance of evidence that she was subjected to harassment based on
her prior protected activity.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 3, 2010
__________________
Date
2
0120083863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083863