0320080052
09-11-2008
Richard L. Nolan, Petitioner, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Richard L. Nolan,
Petitioner,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Petition No. 0320080052
MSPB No. DE0752070142I3
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of the final Order issued by the Merit
Systems Protection Board (MSPB) concerning his claim of discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
In an appeal to the MSPB, petitioner alleged that he was discriminated
against on the basis of reprisal for prior protected EEO activity when
he was removed from his position for failure to accept a directed
reassignment. Briefly, the evidence at the MSPB hearing showed
petitioner worked as a Labor Relations Specialist with the Bureau of
Land Management (BLM) until 2000. At that time, he entered into an EEO
settlement agreement whereby he would work 50% of the time for BLM
in Arizona and 50% of the time for the Office of Civil Rights (OCR)
in Washington, D.C. Petitioner's full salary was paid for by BLM, and
he was allowed to work remotely in OCR from Arizona. Starting in 2004,
BLM faced budget restrictions became concerned with paying complainant's
full-time salary for essentially a part time employee. Eventually, in
2006, it was determined that OCR could better utilize petitioner's skills
full-time and OCR was willing to pay for petitioner's salary. In June
2006, petitioner was issued a letter directing his reassignment to the
position of Special Emphasis Program Manager with OCR, requiring him to
move to Washington, D.C. at agency expense. Petitioner turned down the
directed reassignment and was then removed effective December 5, 2006.
The MSPB Administrative Judge (AJ) issued an initial decision finding
that the agency had a legitimate reason to reassign petitioner. The AJ
specifically found that the settlement agreement did not detract from
the legitimacy of the reassignment, noting that the reassignment came
six years after the signing of the agreement. The AJ noted that other
employees could do petitioner's work and that OCR needed petitioner for
full time work. Finally, the AJ found that petitioner did not establish a
nexus between his EEO activity and the action in removing him. Petitioner
sought review by the full Board, which denied his petition. Petitioner
then filed the instant petition.
EEOC regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record, it is the decision of
the Commission to concur with the final decision of the MSPB finding
no discrimination. The Commission finds that the MSPB's decision
constitutes a correct interpretation of the laws, rules, regulations,
and policies governing this matter and is supported by the evidence in
the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0408)
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
September 11, 2008
__________________
Date
2
0320080052
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0320080052