Gary Lacy Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 5, 2000
01985613 (E.E.O.C. Jan. 5, 2000)

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.