Brad A. Michael, Appellant, Lt. General Kenneth A. Minihan, Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980387 (E.E.O.C. Nov. 4, 1999)

05980387

11-04-1999

Brad A. Michael, Appellant, Lt. General Kenneth A. Minihan, Director, National Security Agency, Agency.


Brad A. Michael, )

Appellant, )

) Request No. 05980387 v. ) Appeal No. 01971283

) Agency No. DOD-97-003

Lt. General Kenneth

A. Minihan, )

Director,

)

National Security Agency,

)

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

On March 4, 1998, the agency timely initiated a request to the Equal

Employment Opportunity Commission to reconsider the decision in Michael

v. National Security Agency, EEOC Appeal No. 01971283 (February 4, 1998).

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

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

appellant's response thereto, the previous decision, and the entire

record, the Commission finds that the agency's request fails to meet

the criteria of 29 C.F.R. �1614.407(c), and it is the decision of the

Commission to deny the agency's request. The decision in EEOC Appeal

No. 01971283 remains the Commission's final decision.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108.<1> The agency shall acknowledge to the

appellant that it has received the remanded allegations within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to appellant a copy of the investigative file and also shall

notify appellant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless

the matter is otherwise resolved prior to that time. If the appellant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Nov. 4, 1999

Date

Frances

M.

Hart

Executive Officer

Executive Secretariat1As noted in the

previous decision, the appellant raised

reprisal with regard to allegations 1

and 2. We clarify that the agency

must investigate the reprisal basis

with regard to both allegations.

Sanchez v. Standard Brands, Inc.,

431 F.2d 455, 462-466 (5th Cir. 1970).