Thomas F. Johnson, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 23, 2005
01a51510 (E.E.O.C. Mar. 23, 2005)

01a51510

03-23-2005

Thomas F. Johnson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Thomas F. Johnson v. Department of Veterans Affairs

01A51510

March 23, 2005

.

Thomas F. Johnson,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51510

Agency No. 200K-0676-2004100978

DECISION

Complainant appeals to the Commission from the agency's November 5,

2004 decision finding no discrimination. According to the agency's

decision, complainant alleges that he was subjected to discrimination on

the basis of sex (male) when, on December 22, 2003, the Associate Director

reassigned him to a 7:30 a.m. tour on Ward 403A. Complainant also alleges

that he was subjected to discrimination on the basis of reprisal for prior

EEO activity when he was suspended for 14 calendar days from March 28,

2004 through April 10, 2004, by the Mental Health Service Line Manager.

The agency, in its decision, concluded that it asserted a legitimate,

nondiscriminatory reason for its actions, which complainant failed

to rebut.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for its actions. Regarding the reassignment, the Chief of Staff

stated that a coworker accused complainant of intimidating behavior.

The Chief of Staff commented that the coworker requested to be reassigned

because she felt uneasy around the other employees on the unit where

the incident occurred. The Chief of Staff reported that complainant

was reassigned almost immediately and, sometime later, the coworker was

reassigned back to the unit at her request. The Chief of Staff said that

consideration was given to complainant's request to work the p.m. tour.

However, the Chief of Staff said that those discussions were centered

around the need for additional supervision of complainant, and because of

those concerns, the Mental Health Service Line Manager made the decision

not to allow complainant to be moved off of the day shift.

As to the suspension, the Chief of Staff stated that the 14-day suspension

was a result of the intimidating actions that complainant and two other

employees took against a coworker. The Chief of Staff mentioned that

the other two employees were likewise disciplined. The Chief of Staff

expressed that complainant's discipline was appropriate for his role in

the intimidating action that the took against the coworker.

The Commission finds that complainant failed to show that the agency's

reasons are pretext for discrimination. Furthermore, complainant failed

to show, by a preponderance of the evidence, that he was discriminated

against on the bases of sex or reprisal.

The agency's decision finding no discrimination is AFFIRMED.

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

March 23, 2005

__________________

Date