Michael Dwyer, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 18, 2007
0120071152 (E.E.O.C. May. 18, 2007)

0120071152

05-18-2007

Michael Dwyer, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Michael Dwyer,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120071152

Hearing No. 320-2005-00026X

Agency No. 200M-0741-2004101710

DECISION

On December 22, 2006, complainant filed an appeal alleging that the

agency has not complied with its October 2, 2006 final order 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. The appeal is deemed

timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).

On April 9, 2004, complainant filed an EEO complaint alleging that he

was discriminated against on the basis of reprisal for prior protected

EEO activity when: (1) complainant was given a permanent change in tour

of duty in March 2004; (2) complainant was given negative performance

appraisal in 2004; and (3) subjected to harassment.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The AJ held a hearing and issued a decision

on September 18, 2006. The AJ determined that complainant had been

subjected to unlawful retaliation solely as to the issue of his change

in his tour of duty in March 2004. The AJ ordered the agency to take

the following actions:

1. To offer complainant in writing, a part-time work schedule and

arrangement similar to the schedule complainant had in place from December

2001 to March 2004.

2. To enjoin the agency's managers, supervisors, and officials from

discriminating or retaliating against complainant;

3. To tender to complainant the amount of $4,500.00 in compensatory

damages; and

4. To pay the sum of $8,198.98 in attorneys fees and costs to

complainant's attorney.

The agency subsequently issued a final order on October 2, 2006;

adopting the AJ's finding that complainant proved that he was subjected

to discrimination as alleged.

On November 9, 2006, complainant filed a claim of noncompliance with

the agency. It noted that he was not to be given a work schedule

similar to the one he had in place from December 2001 to March 2004,

as ordered by the AJ and implemented by the agency. Specifically,

complainant pointed to a letter he received from the agency stating

that "because [he is] no longer employed by the agency, ... the agency

is unable to offer a part-time work schedule similar to the schedule

and arrangement that was in place from December 2001 to March 2004."

Complainant argued that his removal from employment does not excuse the

agency from affording him full, "make whole" relief.

In response to complainant's appeal, the agency argues that the appeal

is premature. The agency noted that complainant was removed from the

agency effective February 27, 2006. Further, the agency indicates that

the removal action and another disciplinary action are the subjects of

a grievance action filed by complainant. The agency contends that if

the removal action is upheld, then the agency shall not take any action

regarding the schedule. However, the agency also asserts that if the

removal action is reversed and complainant is reinstated, then the agency

would be required to comply with the AJ's order which it adopted.

Upon review, we find that the agency correctly determined that the AJ's

order to place complainant in a part-time work schedule and arrangement

similar to the schedule complainant had in place from December 2001 to

March 2004 is rendered moot in light of the February 27, 2006 removal

action.1 Based on a thorough review of the record and the contentions

on appeal, including those not specifically addressed herein, we find

that the agency has complied with the AJ's ordered as implemented by

the agency's final order.

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

May 18, 2007

__________________

Date

1 The agency indicated that complainant filed a grievance

regarding the removal action. The agency shall take the

remedial action as ordered by the AJ if the removal action

is overturned.

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2

0120071152

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120071152