Richard F. McCarthy, Jr., Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01994029 (E.E.O.C. Nov. 5, 1999)

01994029

11-05-1999

Richard F. McCarthy, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Richard F. McCarthy, Jr. v. Department of Veterans Affairs

01994029

November 5, 1999

Richard F. McCarthy, Jr., )

Appellant, )

)

v. ) Appeal No. 01994029

) Agency No. 99-0730

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated March 26, 1999, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The final agency decision accepted for investigation the appellant's

claim that he was discriminated against based on his age and

mental disability when he was not hired for Health System Specialist

positions under announcement numbers MP 98-120 and 98-167. The agency

dismissed the appellant's claim that he was denied a Program Support

Assistant/Compensated Work Therapy (CWT) job assignment that the appellant

and his CWT Coordinator had agreed upon. The agency represented that

the CWT Program was authorized under 38 U.S.C. �1718(a). That statutory

provision specifies that patients in the agency's health care facilities

may provide services for therapeutic and rehabilitative purposes but they

"shall not under these circumstances be held or considered as employees

of the United States for any purposes."

On appeal, the appellant represents that he was a temporary agency

employee when he applied for the CWT position at issue. The appellant

also represents that he was an applicant for other agency vacancies when

the alleged discrimination occurred on September 21, 1999. The appellant

acknowledges, however, that he initially was told he would be assigned

to the CWT position as part of an overall therapy program.

The Commission is authorized by statute to remedy discrimination in

Federal employment. However, the appellant has not disputed that 38

U.S.C. �1718 is applicable to the CWT position at issue in this appeal.

That provision provides that patients who provide services for therapeutic

and rehabilitative purposes shall not be considered as employees of the

United States for any purposes. If CWT workers are not Federal employees,

then applicants for CWT positions can not be considered to be applicants

for Federal employment. Therefore, the Commission finds that, as to the

CWT position, the appellant was not an applicant for Federal employment.

Accordingly, the Commission finds that the agency properly dismissed

the appellant's CWT allegation for failure to state a claim under 29

C.F.R. Part 1614. See 29 C.F.R ��1614.103(c) and 107(a).

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of the CWT allegation from the appellant's March 2, 1999

complaint.

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. 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 (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:

11/05/1999

______________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations