0120053774
02-23-2007
James M. Berger, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
James M. Berger,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120053774
Agency No. 200306742004101
Hearing No. 330-2004-0164X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 8, 2005 final decision concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. Complainant alleged that the agency
discriminated against him on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on
January 22, 2004, he was reassigned due to ongoing interpersonal concerns
between him and his staff; and (2) on January 23, 2004, his Charge Nurse
completed his proficiency seven (7) weeks before it was due.1
The record reflects that complainant filed an initial EEO complaint in
April of 2003, alleging discrimination against his first and second line
supervisors at the agency's Medical Center in Waco, Texas. Complainant
stated that the prior EEO complaint was processed between May 18,
2003 and August 18, 2003. Subsequently, the incidents alleged in the
instant formal EEO complaint occurred in January of 2004. Following the
investigation of complainant's allegations, he requested a formal hearing
before an EEOC Administrative Judge, and then withdrew his request.
The agency issued a final decision, finding that while complainant
established a prima facie case of retaliation, complainant failed to
proffer evidence that the agency's legitimate, articulated reasons
for its actions were more likely than not a pretext for retaliation.
On appeal, complainant alleges that he proffered evidence of pretext
which demonstrated that he was reassigned to another duty station due
to retaliation for his prior EEO activity. The agency did not respond
to complainant's appeal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred. In so finding, we concur with the final
decision's finding that complainant failed to proffer evidence which
indicated that the agency's reasons for reassigning him and issuing his
proficiency report early were pretextual in nature.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____2/23/07______________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2 Complainant's supervisors stated that he was reassigned on January
2, 2004 due to ongoing concerns over his interpersonal skills with the
facility's Unit Staff, and his proficiency report was issued on January
30, 2004 as he was being reassigned and his new supervisor would not have
been able to observe him for the required 90 days to write a proficiency
report for him. Complainant's second-line supervisor stated that agency
regulations permit presenting a proficiency report to an employee up to
90 days prior to the due date. Investigative Report, at Exhibit B-3.
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2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120053774