01a40404
05-20-2005
Leroy Sweeney, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Leroy Sweeney v. Department of Veterans Affairs
01A40404
05-20-05
.
Leroy Sweeney,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40404
Agency No. 200P-2377
Hearing No. 340-2001-03208X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against him on the
bases of age (55) and reprisal for prior EEO activity when:
(A) during a staff meeting on April 11, 2000, complainant brought up an
issue that management felt was personal in nature. After the meeting,
the supervisor confronted complainant regarding the incident;
(B) on April 11, 2000, the supervisor denied complaint a copy of his
performance appraisal;
(C) on May 8, 2000, the supervisor conducted a work site visit and
questioned other employees regarding complainant's work performance;
(D) on May 25, 2000, the supervisor reassigned complainant to a
different area;
(E) on August 23, 2000, the supervisor had a conversation with
a coworker. In that conversation, the supervisor allegedly lied to
the coworker when he told the coworker that he had received several
complaints about complainant from a nurse manager when complainant was
assigned to her ward;
on July 3, 2000, complainant requested funds for a Hawaiian Luau, and
the supervisor did not grant approval of the funds prior to the July 3,
2000 event;
on July 3, 2000, complainant requested funds for supplies and equipment
and was not given approval in a timely manner; and
there was a job announcement, number 00-256, that was not disseminated
to complainant by his supervisor.
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 order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.<1>
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
____05-20-05______________
Date
1 In order for harassment to be considered
as conduct in violation of the regulations that the Commission enforces,
it must be pervasive or severe enough to significantly and adversely
alter the conditions of the victim's employment and create an abusive
working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993). The conduct in question is evaluated from the standpoint of a
reasonable person, taking into account the particular context in which
it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644
(6th Cir. 1986). In the present case, the Commission does not find that
the incidents identified by complainant in paragraphs (A) through (H)
were pervasive or severe enough to significantly and adversely alter
the conditions of his employment. Furthermore, there is no indication
that a discriminatory animus based on age or reprisal was the motivation
behind the supervisor's actions.