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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0120071152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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