ARB CASE NO. 99-043
ALJ CASE NO. 98-ERA-23
DATE: June 29, 2001
In the Matter of:
LARRY D. SMYTH,
COMPLAINANT,
v.
JOHNSON CONTROLS WORLD, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Larry D. Smyth, Pro se, Santa Fe, New Mexico
For the Respondent: S. Barry Paisner, Esq., Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P.,
Santa Fe, New Mexico
FINAL DECISION AND ORDER
This is the second of two discrimination complaints filed by Complainant Larry D. Smyth under the Energy Reorganization Act, as amended, 42 U.S.C. §5851 (1996). Both complaints are connected with his employment by Respondent Johnson Controls at the Los Alamos National Laboratories (LANL).
1SeeSmyth v. Regents of the Univ. of California, LANL, ALJ No. 98-ERA-3, [ALJ] Recommended Dec. and Ord. Approving Settlement (Jan. 22, 1998); Smyth v. Regents of the Univ. of California, LANL, ARB No. 98-068, Final Ord. Approving Settlement and Dismissing Complaint (Mar. 13, 1998).
2 Smyth filed this complaint against Johnson Controls on December 22, 1997. At trial, the ALJ accepted evidence concerning the circumstances leading up to Smyth's termination in April 1997 on the possibility that there might be a continuing violation. However, the ALJ ultimately rejected a continuing violation theory and held that the only issue to be decided was whether the letter of December 8, 1997, violated the ERA, implicitly holding that Smyth's claims of other discriminatory acts were untimely. RD&O at 15-16. We concur with the ALJ's conclusion that this case does not involve a continuing violation.
3 Smyth also found the December 16 letter objectionable, but testified that it was not part of his complaint. RD&O at 5.
4See also Mack v. Strauss,134 F.Supp.2d 103, 113 (D.D.C. 2001) (under Section 501 of the Rehabilitation Act of 1973, "there can be no claim in this case that the negative performance evaluation constituted an adverse action given the undisputed evidence that the evaluation was rescinded and changed to a fully effective' performance rating"); Blalock v. Dale County Bd. of Educ., 84 F.Supp.2d 1291, 1310 (M.D. Ala. 1999) (under Title VII, Title IX of the Education Amendments of 1972, and 42 U.S.C. §1983) (involuntary transfer of teacher rescinded one week later not an adverse action; "threshold level of substantiality" not met); Butler v. Isleta Indep. Sch. Dist., 161 F.3d 263, 268 (5th Cir. 1998) (Title VII) (no violation when a teacher initially was transferred involuntarily to teach at a different grade level but transfer was rescinded when another teacher offered to trade, observing that "even if an employment action was contemplated, or even favored, by the school district, none occurred"); Coney v. Dep't of Human Resources of State of Georgia, 787 F.Supp. 1434, 1442 (M.D. Ga. 1992) (Title VII) ("A written reprimand, which was later rescinded, merely warned plaintiff that his failure to carry out his assigned duties would not be tolerated in the future. The court finds that a nonthreatening written reprimand, which is later removed from an employee's personnel file, is not an adverse employment action").