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.