Marilyn Lynch, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01995144 (E.E.O.C. Oct. 20, 1999)

01995144

10-20-1999

Marilyn Lynch, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Marilyn Lynch v. Department of Veterans Affairs

01995144

October 20, 1999

Marilyn Lynch, )

Appellant, )

)

v. ) Appeal No. 01995144

) Agency No. 99-2834

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

Agency. )

______________________________)

DECISION

On June 8, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated June 1, 1999, pertaining to

her complaint of unlawful employment discrimination in violation of

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of mental disability (mental illness) and in

reprisal for prior EEO activity when on October 24, 1998, she received

a proposed letter of termination which was sustained on November 23,

1998, with an effective date of December 5, 1998.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(d), on the grounds that appellant raised the matter

in an appeal to the Merit Systems Protection Board (MSPB). Specifically,

the agency determined that because appellant filed an appeal with the MSPB

on December 14, 1998, and subsequently filed her formal EEO complaint on

February 1, 1999, she elected the MSPB as the forum in which to address

her concerns.

EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency shall

dismiss a complaint or portion thereof where the complainant raised the

matter in an appeal to the MSPB. In the instant case, the record clearly

demonstrates that appellant raised her December 14, 1998 termination

with the MSPB. As appellant's formal complaint was filed after her

MSPB appeal, we find that she elected to utilize the MSPB as the forum

in which to address the matter.

Accordingly, the agency's final decision is AFFIRMED for the reasons

set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

October 20, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations