Bradley Lyons, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a03088 (E.E.O.C. Jul. 6, 2000)

01a03088

07-06-2000

Bradley Lyons, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Bradley Lyons v. Department of Veterans Affairs

01A03088

07-06-00

Bradley Lyons, )

Complainant, ) Appeal No. 01A03088

) Agency Nos. 98-0358

v. ) 98-1634

) 98-1663

Togo D. West, Jr., ) Hearing Nos. 340-98-3758X

Secretary, ) 340-99-3242X

Department of Veterans Affairs, ) 340-99-3243X

Agency. )

__________________________________)

DISMISSAL

On March 17, 2000, complainant filed an appeal with this Commission

from a final agency decision, dated October 22, 1999, dismissing his

complaint.<1> The appeal is accepted by the Commission in accordance

with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �

1614.405).<2>

In this case, the record indicates that complainant filed three complaints

against the agency on November 18, 1997, April 24, 1998 and July 2,

1998. After an investigation, the three complaints were forwarded to

the Commission for an administrative hearing. On February 8, 1999,

complainant filed a civil action in the United States District Court

for the Central District of California. Complainant's civil action was

docketed as CV-99-1303. On September 22, 1999, an EEOC AJ, after finding

that the allegations raised in complainant's three complaints were also

raised in his civil action, remanded complainant's formal complaints

to the agency for dismissal. On October 22, 1999, the agency dismissed

complainant's complaints. This appeal followed.

On appeal, complainant presented evidence that, on February 29, 2000, his

civil action was dismissed without prejudice. Therefore, in accordance

with Commission precedent, he sought the reinstatement of his complaints.

In addition, we note that the record contains a letter from the agency's

Regional EEO Officer to the Director of the Commission's District office

in Los Angeles, California indicating that, �[w]e are re-submitting the

complete case files of [complainant], Case Numbers 98-1634, 98-1663,

and 98-0358, for an EEOC Hearing. Please consolidate them with the

complaint listed below, which is already at your facility, pending the

assignment of an Administrative Judge for an EEOC hearing.�

Because the agency has already taken steps to reinstate complainant's

complaints and has re-submitted them for an administrative hearing,

we find no justification for proceeding with this appeal. Accordingly,

this matter is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-06-00 __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The record does not contain any evidence that would establish the date

that complainant received the agency's final decision; therefore, the

Commission will assume that complainant filed his appeal within the

30-day time limitation period.

2On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.