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