0120162502
10-28-2016
Thomasina B.,1 Complainant, v. Admiral Michael S. Rogers, Director, National Security Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thomasina B.,1
Complainant,
v.
Admiral Michael S. Rogers,
Director,
National Security Agency,
Agency.
Appeal No. 0120162502
Agency No. 16-009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 27, 2016, dismissing her complaint of unlawful employment discrimination alleging a violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief, GG-15, in the Technology Directorate at the Agency's facility in Fort George G. Meade, Maryland.
On December 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of age (56) when she was not selected to attend a gathering held when the President visited the Agency in September 2015. Complainant alleged that all employees were notified of the visit and were permitted to express their interest in attending, but told that only a limited number could attend. Complainant expressed her interest, but was not selected. She asserted that she was told that management specifically requested that junior employees be selected to attend the visit. From Complainant's organization, a GS-11 hired in 2012 and a GS-13 hired in 2010 were selected to attend.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In the instant case, we find that the Agency did not err in concluding Complainant failed to alleged facts, which if proven true and considered together, would establish that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. This is true even assuming a manager made an age-related comment in describing the selection for this event. The event at issue was a one-time occurrence and had no impact on any term, condition, or privilege of employment.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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0120162502