05a00909
02-15-2001
Joseph B. Flint v. Department of Defense (National Security Agency)
05A00909
02-15-01
.
Joseph B. Flint,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(National Security Agency),
Agency.
Request No. 05A00909
Appeal No. 01A01401
Agency No. 98-035
DECISION ON REQUEST TO RECONSIDER
On June 16, 2000, Joseph B. Flint (complainant) timely initiated a request
to the Equal Employment Opportunity Commission to reconsider the decision
in Joseph B. Flint v. William S. Cohen, Secretary, Department of Defense
(National Security Agency), EEOC Appeal No. 01A01401 (June 9, 2000).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).<1> For the reasons set forth below, the complainant's
request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration of the previous decision.
Complainant filed his formal complaint in August 1998, alleging
discrimination based on reprisal for prior EEO activity<2> when he
discovered that he was not utilized the same as other technical leaders.
The agency issued its final agency decision (FAD) on October 13, 1999,
finding no discrimination, and that decision was affirmed on appeal.
Complainant worked as the Technical Leader in M--- Branch. In June 1998,
complainant asked other Technical Leaders in other branches about the
scope of their duties, and he concluded that he was being underutilized.
Specifically, complainant claimed that he was not given meaningful work,
was not assigned TDYs or to meet with customers, that he was "pushed
downstairs" to another unit, and that he was not provided with a Personal
Performance Process (P3). He contended that he experienced retaliation
and that reports from the Office of Inspector General (OIG) identify
the persons responsible for the retaliation; complainant speculated
that a former supervisor had retaliated against him based on the former
supervisor's alleged contradictory statements.
In response, the agency stated that complainant's position required
some initiation of work products and that it provided suggestions
and proposals to complainant but that he failed to develop projects
or tasks. For this reason, as well as personality clashes with others,
he was moved to a different area. Also, the agency denied that he was
not given support, an opportunity for contact with clients and TDYs,
or that it acted in retaliation.
Complainant has filed a request that the Commission reconsider the
previous decision. He stated that no reasoning was offered in the
prior decision and that his complainant concerned acts of reprisal
and not retaliation. In order to merit the reconsideration of a prior
Commission decision, the requesting party must submit written argument
that tends to establish that at least one of the criteria of 29 C.F.R.
� 1614.405(b) is met. The Commission's scope of review on a request
for reconsideration is narrow, and it is not a form of second appeal.
Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7,
1990).
Complainant is advised that his appeal was given a de novo review
as required by Commission regulations and that the record and all
statements submitted on appeal were reviewed. 29 C.F.R. � 1614.405(a).
In addition, for complainant's information, the Commission uses reprisal
and retaliation interchangeably, both referring to an act taken in
response to a protected action.
As to the merits of complainant's claim, we find that the agency did
not discriminate against him. Even if he established a prima facie case
of discrimination based on reprisal, complainant did not demonstrate
that the agency's reasons for its actions were pretextual, that is,
based on discriminatory factors or animus.
CONCLUSION
After a review of the complainant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the complainant's request fails to meet any
of the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of
the Commission to deny the complainant's request. The decision of
the Commission in EEOC Appeal No. 01A01401 (June 9, 2000) remains
the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
___02-15-01_______________
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.
2Complainant previously filed complaints of discrimination in June
1996 and February 1997, alleging violations of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq.