05A20993
09-05-2002
Joseph B. Flint, Complainant, v. Lt. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Joseph B. Flint v. National Security Agency
05A20993
September 5, 2002
.
Joseph B. Flint,
Complainant,
v.
Lt. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Request No. 05A20993
Appeal No. 01A02308
Agency No. 96-030 & 97-016
DENIAL OF REQUEST FOR RECONSIDERATION
The National Security Agency (agency) timely initiated a request to
the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in Joseph B. Flint v. National Security Agency,
EEOC Appeal No. 01A02308 (June 20, 2002). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A02308 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration. Our previous Order
is restated below.
ORDER
(1) The agency is ordered to consider the issues of compensatory
damages<1> and attorney's fees<2>. Within ninety (90) calendar days
after the date this decision becomes final, the agency shall conduct
a supplemental investigation of the compensatory damages issue.
The complainant shall cooperate in the agency's efforts to consider
compensatory damages, and shall provide all relevant information requested
by the agency. If complainant is seeking attorney's fees, he shall,
through counsel, submit a request for attorney's fees in accordance
with the �Attorney's Fees� paragraph set forth below. No later than
sixty (60) calendar days after the agency's receipt of complainant's
submissions for the supplemental investigation and the attorney's fees
statement, the agency shall issue a final agency decision addressing
the issues of compensatory damages and attorney's fees. If there is
a dispute regarding the exact amount of compensatory damages and/or
attorney's fees, the agency shall issue a check to the complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for enforcement or clarification must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
(2) The agency shall post a notice of the finding of discrimination in
accordance with the paragraph below entitled, �Posting Order.�
(3) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's actions in accordance with this Order.
POSTING ORDER (G0900)
The agency is ordered to post at its Fort Meade, Maryland facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
September 5, 2002
__________________
Date
1Compensatory damages may be awarded for the
past pecuniary losses, future pecuniary losses, and non-pecuniary losses
which are directly or proximately caused by the agency's discriminatory
conduct. Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992), at 8. To receive an award of compensatory damages, a complainant
must demonstrate that he or she has been harmed as a result of the
agency's discriminatory action; the extent, nature, and severity of
the harm; and the duration or expected duration of the harm. Rivera
v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994)
req. for recons. den. EEOC Request No. 05940927 (December 11, 1995);
Compensatory and Punitive Damages Available Under Section 102 of the Civil
Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14.
2See Farrar v. Hobby, 506 U.S. 103 (1992).