01985613
01-05-2000
Gary Lacy Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Gary Lacy v. Department of Veterans Affairs
01985613
January 5, 2000
Gary Lacy )
Complainant, )
)
v. ) Appeal No. 01985613
) Agency No. 96-1171
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
_______________________________)
DISMISSAL OF APPEAL
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.<1> The final agency decision was
dated June 9, 1998 which complainant indicates he received on June 18,
1998. The appeal was postmarked July 9, 1998 therefore, in the absence
of evidence to the contrary the appeal is timely (See, 64 Fed. Reg.
37659 to be codified at 29 C.F.R. � 1614.402(a)).
Complainant alleged in his EEO complaint that he was discriminated against
on the basis of his race (African American) and reprisal when he was
suspended on January 21, 1996 because he had verbally abused patients.
The evidence in the record indicates, however, that complainant filed
a civil action (97-6343) in the United States District Court for the
Southern District of New York which states the same claims raised in
his EEO appeal. Specifically, complainant alleged in his federal court
complaint, among other things, that the Department of Veterans' Affairs
concealed "100 signed character affirmations that are in my favor, and
they all state that I have never abused anyone,..." Complainant also
alleged that the agency, "discriminated against me with reference to
tenure, promotion, and my conditions of employment, because I was an
effective shop steward and have filed at least 15 various complaints."
For these reasons and because our regulation at 29 C.F.R. � 1614.410
requires that we terminate our processing of the EEO complaint we conclude
that the instant appeal must be dismissed.
CONCLUSION
Accordingly, the complaint is dismissed pursuant to 29 C.F.R. � 1614.410
as a result of the filing of a civil action in the United States District
Court for the Southern District of New York.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
For the Commission:
1/5/00 __________________________
Date Carlton M. Hadden
Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Equal Employment Assistant
_________________________
Date
1On 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.