01994685
06-29-2000
Virginia L. Nelson, Complainant, v. Lt. Gen. Kenneth A. Minihan, Director, National Security Agency, Agency.
Virginia L. Nelson, )
Complainant, )
)
v. ) Appeal No. 01994685
) Agency No. 99-024
Lt. Gen. Kenneth A. Minihan, )
Director, )
National Security Agency, )
Agency. )
____________________________________)
DECISION
On May 20, 1999, complainant filed a timely appeal with this Commission
from an agency's decision pertaining to her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on sex, disability and reprisal. Informal efforts to resolve her
concerns were unsuccessful. Subsequently, on March 12, 1999, complainant
filed a formal complaint. The agency framed the claim as follows:
On November 5 and 6, 1998, complainant was subjected to a security
interview and polygraph examination that were allegedly conducted
improperly.
On April 30, 1999, the agency issued a decision dismissing the complaint
on the grounds that it failed to state a claim and alleged a preliminary
step to taking a personnel action was discriminatory. Further, the
agency noted that no final decision had been made regarding complainant's
security clearance.
On appeal, complainant argues that the agency narrowly defined the issue
in an effort to cover up discrimination. According to complainant, the
complaint concerns the �discriminatory animus practiced against her by
Agency employees.� Moreover, complainant contends that the EEO Counselor
failed to conduct a fair and reasonable investigation of the facts.
In response, the agency argues that in this case the Commission is
precluded from reviewing the agency's security clearance investigation.
Moreover, the agency reiterates its determination that the matter
concerns a preliminary step to a personnel action. According to the
agency, no personnel action was taken. The agency also contends that
the complaint fails to state a claim, in that complainant has failed to
show any direct harm that has affected a term, condition or privilege
of her employment.
As a preliminary matter, we note that complainant asserts on appeal that
the agency misdefined her claim. Complainant, however, only provides
generalized statements of discrimination by the agency without setting
forth any other specific incidents. After a review of the record, we
find that the agency correctly framed the complaint as concerning the
security interview and polygraph incidents on November 5 and 6, 1998.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. 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).
Complainant was allegedly subjected to an improperly conducted security
interview and polygraph examination. However, complainant does not
appear to be challenging any adverse action taken by the agency as
a result of the investigation. We find that complainant has failed
to show that the investigation resulted in a harm or loss to a term,
condition or privilege of her employment. The investigation by the
agency, regarding the theft of approximately $4,000 from a co-worker,
does not render complainant an �aggrieved� employee.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
June 29, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.