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