01972374
09-02-1999
Thomas E. Kaprive, Appellant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency Agency.
Thomas E. Kaprive, )
Appellant, )
) Appeal No. 01972374
v. ) Agency No. 89-018; 93-079;
) 94-111
) Hearing No. 120-94-5866
) 120-95-6081X
Lt. Gen. Kenneth A. Minihan, ) 120-95-6446X
Director, )
National Security Agency )
Agency. )
)
)
DECISION
Thomas E. Kaprive, (hereinafter, "Appellant") filed a timely appeal from
a final agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint of unlawful employment discrimination on the bases of
reprisal and age (7/7/36), and in violation 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 (ADEA), as amended, 29 U.S.C. �
621 et seq. Appellant alleges he was discriminated against when: (1)
he was not promoted to a GGD-14 in 1989; (2) he was not promoted to a
GGD-14 in 1993, and 3) he was not promoted to a GGD-14 in 1994<1>. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is REVERSED and REMANDED.
The record reveals that appellant, a Senior Contracting Specialist GGD-13
at the agency's Office of Contracting in Fort Meade, Maryland, filed a
formal EEO complaint with the agency on March 21, 1989, alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
The AJ concluded that appellant had contested the agency's failure to
appoint him as a Branch Chief as part of his claim of non-promotion
and determined that the claim was moot because he was appointed as a
Branch Chief shortly after filing his complaint. The AJ interpreted
appellant's claim that the younger interns received preferential treatment
in promotions, assignments etc. as a claim of disparate impact. She then
concluded that appellant had failed to put forth sufficient statistical or
expert evidence to prevail on a disparate impact claim, and consequently
the intern program as implemented was not found to be discriminatory.
The AJ determined that appellant failed to establish by a preponderance
of the evidence that he had been discriminated against on the basis of
his age. She concluded that appellant failed to show that management's
legitimate non-discriminatory reasons were a pretext because the evidence
showed he was considered good, but not outstanding as were the employees
promoted. She noted that testimony indicated appellant did not perform
duties outside of his normal expected duties like those who received
promotions.
Finally, the AJ concluded that appellant failed to prove a prima
facie case of reprisal because he did not show that the motive for
his non-promotion was his EEO activity. She also concluded that the
Directorate or Agency Promotion Boards were not aware of appellant's
EEO activity in 1989 or 1993.
The agency's final decision adopted the findings of the AJ in large part.
On appeal, appellant contends that the AJ erred in finding that the
Agency had presented credible justifications for discriminatory conduct.
He averred that the AJ based her opinion on the statements of managers who
had directly contradicted their own previous ratings of his performance
at or near the highest possible numerical rating. Appellant also alleged
error in the finding of no retaliation because a Division Chief had
stated that managers would not support appellant's promotion due to his
filing of an age discrimination complaint.
After a careful review of the record, and applying the principles set
forth in McDonnell Douglas v. Green, 411 U.S. 792, (1973) and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248(1981), Loeb v.
Textron, 600 F.2d 1003, (1st Cir. 19779), the Commission finds that
contrary to the AJ's conclusions, the record contains substantial evidence
of age discrimination and that the agency's nondiscriminatory reasons
for not promoting appellant are not credible. Although we are usually
deferential to an AJ's credibility findings, there was documentary
evidence which directly contradicted witness testimony regarding
appellant's weaknesses. There was also no documentary evidence of the
credentials of the person promoted in 1989 over appellant on the record.
See, Esquer v. United States Postal Service, EEOC Request No. 05960096
(September 6, 1996); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
Saramma v. Department of Veterans Affairs, EEOC Request No. 05930131
(September 2, 1993). As outlined below, the reasons given by the agency
for not promoting appellant are not supported in substantial part by
the record.
As discussed below, we are persuaded that appellant was denied a promotion
in 1989 due to a series of discriminatory events starting with the phasing
out of his team from 1988 to 1989 and the influx of a younger group of
employees who were ripe for promotion in 1988 and 1989. The agency was
also motivated to advance many of its young interns who were identified
by an internal report performed by the agency's Inspector General as
"frustrated". The agency's efforts to retain its up and coming younger
class are readily apparent from the record and caused it to steer the more
desirable work to the younger employees at the expense of appellant's
career, and for each of the next succeeding promotion cycles. As one
manager explained, when the new Office Chief (S1) took over, in 1988,
the Contracting Office took a different course.
Unlike the AJ, we did not view appellant's claims as stating a
disparate impact case with respect to the agency's intern program.
Appellant complained that preferential treatment was given to the
interns, a majority of whom were much younger than appellant, but also
some non-interns who were much younger and as such, his claims were more
properly analyzed as disparate treatment claims.
Nevertheless, the preponderance of the evidence as discussed below,
established that younger employees were favored with a few well-placed
exceptions for promotions and assignments, and were mentored and sponsored
by various management employees to ensure that they were successful.
1989 Promotion
At the time appellant was being considered for a promotion to GGD-14
for the 1989 promotion cycle, he had received all excellent performance
appraisals and superior ratings on the Inventory of Attributes which is an
appraisal done for grades 12 through 15 only. The Inventory of Attributes
rated employees on such areas as innovativeness, effectiveness, drive and
initiative, and advancement potential. From 1987 to 1989 his supervisor
rated him with the highest scores possible and indicated that he "should
be immediately promoted to a position of greater responsibility"..., and,
"he has all the attributes required for a higher management position".
He received superior ratings from a different supervisor in 1985 and
1986 who also noted appellant had the potential and knowledge to assume
responsibilities at a higher grade level, which at that time would
have been a GGD-14. Appellant's excellent appraisals and high ratings
continued through 1994.
Also at this time, appellant had been team leader to as many as five
employees but by 1989 his team was down to only one other employee,
an intern, who testified that appellant's team was being phased out.
Appellant was at that time 53 years old and was considered "not one of
the young turks". He had obtained his Bachelor's Degree in 1986, and was
a warranted contracting officer, certified in two professional areas.
Although he had been recommended for promotion by two of his Division
Chiefs on separate occasions and his name was independently raised by
the Chairman of the Promotion Board, his Office Chief(S1)(DOB 2/3/44)
refused to advance his promotion because in his opinion there were
others more qualified. Contrary to this statement, S1 reported to the
EEO counselor that appellant was "promotable... the question was when".
The lack of support or sponsorship from an Office Chief was viewed as
detrimental to a promotion. One former member of a promotion board
testified that she looked for the recommendation and testimony of the
Office Chief for "promotable" candidates. The agency's own exhibit
setting forth the notations of a promotion board member specifically
indicated that S1 had endorsed a particular candidate<2> and finally,
a former grade 15 employee of the Contracting Office testified that
Office Chiefs such as S1 have a lot of influence over their Division
Chiefs in who they recommend for promotions. S1 was called on to
support an "add-on" of a nominee S1 had submitted in a previous year.
Add-on nominees were employees identified by the next higher level
promotion board as promotion candidates.
Although it appears from the record that the criteria for promotion to
GG-14 varied from board member to board member in some respects, the
criteria listed by one former member included assignments, education,
training, awards, and time-in-grade. For Contract Office employees, she
looked at whether the employee had good customer satisfaction and whether
he/she had achieved any cost savings. It was noted on appellant's 1990
performance appraisal that he was highly respected by managers and peers
in the organizations he serviced. Similar comments were contained in
appellant's other evaluations.
Appellant made several arguments that S1 refused him attractive
assignments, or hampered his efforts to highlight his abilities.
He contended that he was unfairly denied appointment to a promotion board
and was refused the opportunity to travel overseas to conduct an audit
of a contractor. S1 who had served on more than one promotion board,
denied that serving on a promotion board would advance one's chances
of promotion. This was, however, disputed by the agency's own exhibit
which indicated the notations of a promotion board member that a candidate
had served on a peer promotion board.
Furthermore, S1 was not truthful when he claimed that appellant had not
volunteered to serve on a promotion board. S1 claimed that appellant's
supervisor verified this fact to him. Instead, the agency's own exhibit
establishes that appellant's supervisor had made a written list of persons
for S1 to chose from which included appellant. She also testified that
appellant had volunteered. Even so, S1 did not select appellant to serve.
S1 similarly contended that work on overseas projects would not enhance an
employees' chance of promotion, but a former promotion board member stated
specifically that he viewed overseas travel as a plus when considering
whom to promote. Appellant's request to work on an overseas audit was
turned down in favor of a younger intern.
The employee promoted in 1989 was 35 years old at the time and had
been an intern. The record contains none of his performance appraisals,
Inventory of Attributes or other documentation of his qualifications aside
from the general testimony of managers of his superiority. This same
employee had also been one of seven employees named as Branch chiefs
in 1988. Aside from this fact, there is insufficient specific evidence
to sustain the agency's articulation of its non-discriminatory business
reasons for not promoting appellant.
According to a management employee later to become appellant's supervisor,
one of the reasons appellant had not been promoted was that he was
not a branch chief, division chief or a deputy division chief. Thus,
we find that the agency's failure to appoint him as a branch chief in
1988 contributed greatly to him not being promoted in 1989.
Appellant was finally appointed a branch chief in November 1989 after
he filed his first EEO complaint. It was undisputed that he was not
given any high profile contracts or "customers" and that he was largely
responsible for training new contractors. No one wanted to work in
appellant's branch.
Appellant's branch chief (age 52) in 1989 testified that she had
recommended appellant every year from 1985 to 1989 for a promotion. She
acknowledged that "younger personnel have the edge" for promotions.
Nine employees of the Contracting Office aged 45 to 60, grades 12 to
14 expressed the opinion that appellant had been discriminated against
due to his age. In their view the vast majority of personnel receiving
promotions, educational opportunities and awards were under the age
of 40. They also expressed the view that many people over age 40 had
left because they did not receive adequate recognition. According to
the Senior Contracting Advisor (age 68), although he did not believe
employees were treated differently because of their age, "to some degree,
this [discrimination] may be true of employees over age 50 because those
employees are closer to retirement." These employees impressions are
borne out by the agency's statistics.
The agency's report of its data related to the age of its employees as
of 1991 concluded that NSA "remains a YOUNG agency". 60.2 percent of
employees promoted as of 1991 to grade 14 were 39 or younger, 28 percent
were ages 40-49, 10 percent were 50-59 and 1 percent were 60 and over.
The agency's workforce profile indicated that the average employee of
NSA in 1991 was 39 years old with 12.5 years experience, 30 percent of
its workforce was under the age of 31. In 1991, appellant was 55 years
old with 24 years of experience.
As of 1994, the Contracting Office nominated employees for grade 14 who
were on average 40 years old, and the average nominee at the next level
of promotion review was 41.4 years old. These ages are well below the
age of appellant who was 58 in 1994, and they point to a significant
pattern of promotion that appellant did not fit into. It is also
persuasive evidence in addition to the record as a whole, that but for
appellant's age, he would have been promoted in 1989 or thereafter.
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
The Inspector General's Report
The agency's Inspector General's (IG) office conducted an investigation
of the Contracting Office workforce in 1988 which we believe had an
impact on management's desire to promote its younger employees and
interns over older employees like appellant. The IG report was based
on interviews and surveys of employees, concluded that there were too
few management slots for the number of interns employed and that the
interns had expressed the frustration that it would be difficult to
advance beyond grade 13 without becoming a branch chief.
The IG recommended that the office establish a journeyman grade 14 for its
contracting officers and request advancement to grade 14 out of cycle for
some of its grade 13 employees. The report concluded that the Contracting
Office "is one of the youngest in the Agency"...and "the procurement
profession is highly mobile with continuing job opportunities both
inside and outside the Agency". Thus this evidence strongly indicates
that the Branch Chief position had been highly valued as the vehicle
for promotion to a GG-14 at that time. It is also persuasive evidence
that the Contracting Office responded to the reported frustrations of
the younger contractors by advancing seven of them in 1988, all 41 or
younger to branch chief positions. Although the IG report discussed
the need to keep experienced people as well, the average age of those
promoted indicate that the Contracting Office was more concerned with
keeping its younger employees.
In addition, S1 testified that he had concerns about retaining interns
after they had graduated from the program and wanted the agency to "garner
lots of benefits from them downstream." There was also testimony of
a non-intern (4/24/44) that he approached his Division Chief about his
chances of promotion in 1987 and was informed that S1's interns had to
be promoted first.
Training
The record is undisputed that appellant did not receive valuable
training. According to an employee of the office responsible for
processing training requests testified that from 1990 and before,
appellant had not been nominated by his office to attend any of the
exclusive contracting courses.
Appellants request to attend a course in 1992 entitled "Foreign Affairs
Interdepartmental Seminar" was turned down by his Division Chief (DOB
1958) because it would be a "stretch to state that anyone in L4 has
foreign affairs responsibilities". The same course was approved for
another employee in the office (DOB 1959).
Appellant's request for management training in 1993 was turned down,
he was approved for an Acquisition Reform training in 1994.
Awards
The agency relied on the fact that appellant did not receive as many
awards as its nominees in 1993 and in 1994 as one of the reasons
appellant was either not promoted or not nominated for promotion.
Appellant's division chief in 1988 recommended him for an award but
appellant had received relatively few awards since that time.
Division Chief (D1) offered additional insight into the process for
obtaining awards stating that the giving of awards is influenced by
the division chief who would urge a "customer"<3> to write a letter or
give a cash award to express appreciation to a particular contracting
officer. The cash awards came mostly from the larger customers who were
not assigned to appellant. It is also apparent from the record that
appellant was not a favored contracting officer of D1, a view fostered
by S1, and presumably did not receive the same backing from him as others.
S1 gave testimony that in the earlier years of his tenure as Office
chief, he took the nominations of his Division Chiefs and ultimately
decided which employees would receive awards from the agency.
1993 and 1994 Promotions
There was evidence that the promotion system consisted of three levels
beginning at the office level and then progressing to the Directorate
and then the agency level. A chairman of the 1986 promotion board
testified that at each level the board members reviewed all eligible
grade 13 employees on a "zero based" review meaning that they could
select someone even if not recommended by one's office. Although this
kind of system would seem to favor employees like appellant who was not
favored by his office, we conclude it would not have helped him advance
because he was not receiving the kind of award recognition, assignments
and training opportunities as other employees. As appellant testified,
his branch was the only one not contracting.
In addition, D1 testified that a new candidate would not be initially
considered at the third or agency level of review, and that he had
never heard of the senior executive board promoting someone without the
support of their office chief. Each of the employees promoted from the
Contracting Office in 1992 (age 54), 1993 (age 45), and 1994(age 48)
were recommended by S1. Appellant was included on a list recommended
by S1 for promotion to grade 14 in 1991 and 1992, but he was never S1's
first choice and we conclude he was not a serious contender without the
same kinds of assignments and projects as S1's first choices.
In 1993 and 1994, appellant was not recommended by his Division Chief,
or S1 to the promotion board. According to appellant, at that time he
was left with all the older employees, part-timers, and less educated
employees to train, and his branch was not contracting as all the other
ones were. It was obvious that the same pattern that started in 1988
continued, making it harder to justify his promotion.
Despite appellant's less favorable status, he testified that he took some
initiative to make the best of his group of "elderly women" by giving
a symposium for Martin Marietta Corporation. The symposium featured
presentations given by his group on the contracting process for which
he received compliments, but no formal recognition. He also testified
that his group published an update of contracting changes in the law,
and news from the Procurement Office to 300 sites locally and overseas.
His efforts were apparently not recognized.
The agency contends that it did not discriminate based on age because
an employee close to appellant's age was promoted in 1992, and S1 had
nominated at least two other employees over the age of 50. The agency
did not dispute appellant's argument, however, that the nominee in 1992
(age 54) was the spouse of an office chief and whose favorable connection
may have played a part in her promotion. Also, it is worth noting at this
juncture that, although the agency may promote some within a protected
group, this does not detract from the finding of discrimination. It is
well settled that discrimination against a particular protected group
may not be proven with mathematical certainty, but must be proven by a
preponderance of the evidence. Burdine 450 U.S. at 252-3. Appellant need
only prove that discrimination more likely motivated the decision. Id.
The 1993 promoted employee (DOB 1948)became a branch chief the same year
as appellant. He had not graduated from college as did appellant and
they similarly had excellent performance appraisals and high ratings on
their Inventory of Attributes. He had been recommended for promotion
in 1991 and 1992 above appellant but not in 1993, the year in which he
was promoted. The notable difference between the two was his service
as the Combine Federal Campaign Chairman and as management employees
stated, his "can do" attitude. He also received many awards from 1989
to 1992. Although management employees complained about appellant's
lack of positive attributes, they are not supported by his performance
appraisal in 1993 which again concluded that appellant was "capable of
progressing to a higher level as a contracting officer".
A review of the comparisons in the record of those employees promoted
in 1993 and 1994 reveal that there is little difference in their
accomplishments when compared to appellant. That is, the employee
promoted in 1994 had obtained a Masters degree, whereas appellant had a
Bachelor of Science degree, yet, appellant had been professionalized in
two areas compared to one for the promoted employee. Both had excellent
performance appraisals, the highest ratings on their Inventory of
Attributes and comparable numbers of Letters of Appreciation.
The main area of difference occurred where management had the discretion
in making an assignment, in giving an award or in nominating for a course.
The agency did not compare the number of years of experience of the
employees promoted in both 1993 and 1994, but appellant's testimony
was undisputed that he had more experience and had already done much
of what the younger employees were being commended for. For instance,
the 1994 promotee was commended for his contract work on a new day care
center whereas, as appellant stated, he had already done a contract
for a facility for children, and that there was nothing particularly
difficult about it. We are persuaded that appellant has demonstrated by a
preponderance of the evidence that but for his age he would have received
better assignments and in turn would have been promoted. Fodale v.
Department of Health and Human Services, EEOC Request No. 05960344
(October 16, 1998).
Finally, we cannot credit the testimony of many of the managers who
testified for the agency either because they contradicted their own
excellent evaluations and/or ratings of appellant, or it was undisputed
that they had little work or professional contact with appellant and
as such were not competent to testify to appellant's performance. For
instance, D1 stated that appellant did not use Total Quality Management
(TQM) initiatives, and that his performance did not merit consideration.
Yet D1 signed appellant's Inventory of Attributes in August 1993 which
rated him 99 out of 99 on his contribution to the agency's mission
stating that appellant "promotes TQM within his work unit has done a
TQM assessment of his entire branch and has excellent charts and graphs
demonstrating/measuring branch progress and productivity". Likewise,
there were complaints about appellant's timeliness, customer satisfaction
and his ability to work with the interns, none of which are supported by
either his performance evaluations or his Inventory of Attributes in which
his supervisors consistently rated him at the highest levels in all of
these areas. Appellant also addressed the timeliness of his work in his
testimony, stating that because of the turnover in his unit, employees
did not always "release" the information that projects or contracts
were completed on their computers, causing printouts to be outdated.
This was not disputed by the agency.
For these reasons, we are not persuaded by the agency's non-discriminatory
reasons for not nominating or promoting appellant and we are convinced
based on the statistical and other data of the agency's age profiles,
that younger employees had a decided advantage in this organization.
We further find that the agency's discrimination against appellant was
continuous beginning in 1988 through 1994 and as such caused him to
receive less recognition for less desirable work as a result of the
discrimination.
Reprisal
Appellant alleged that he suffered reprisal after he filed his first EEO
complaint in 1989. On this point there is a mixed record, including some
positive actions of the agency in the area of performance appraisals
and the inclusion of appellant on a promotion list after he filed his
first EEO complaint. On balance, there is not enough evidence to find
that the agency retaliated against appellant.
Therefore, after a careful review of the record, including appellant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission REVERSES
the agency's final decision and REMANDS the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
Although appellant requests attorneys fees, attorney's fees are not
available in a case brought under the ADEA. Seymour v. Department of
Veterans' Affairs, EEOC Request No. 05900257 (July 20, 1990).
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
The agency shall retroactively promote appellant to GG-14 from June 1988.
Appellant shall also be awarded back pay, seniority and other employee
benefits from the date of the effective promotion.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due appellant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. The appellant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall
provide all relevant information requested by the agency. If there is
a dispute regarding the exact amount of back pay and/or benefits, the
agency shall issue a check to the appellant for the undisputed amount
within sixty (60) calendar days of the date the agency determines
the amount it believes to be due. The appellant may petition for
enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer,
at the address referenced in the statement entitled "Implementation of
the Commission's Decision."
3. The agency is directed to conduct EEO training for the all Managers and
S1 of the Contracting Office. The agency shall address these employees'
responsibilities with respect to eliminating discrimination in the
workplace.
4. The agency shall take appropriate preventative steps to ensure that
no employee is subjected to age discrimination from the present and in
the future and to ensure that appropriate steps are taken immediately
after management is notified of any such discrimination;
5. If S1 remains an employee of the agency as of the date of this
Order, the agency shall provide him a minimum of sixteen (16) hours
of EEO sensitivity training with respect to the Age Discrimination in
Employment Act.
6. 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 calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
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.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
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:
9/02/99
DATE Carlton A. Hadden, Acting Director
Office of Federal Operations1Appellant
also alleged denial of upward mobility,
utilization of technical/managerial skills and
career development which were the subject of a
supplemental investigation and are addressed in
general throughout this decision.
2 As the AJ pointed out, the agency redacted the name of this employee and
many others making it difficult to decipher which managers and employees
were involved at various parts of the investigation.
3Although they are referred to as customers, they are often internal
offices of NSA.