05980005x
05-26-2000
Virgil Hart, Complainant, Togo D. West, Jr., Secretary, Department of the Veterans Affairs, Agency.
Virgil Hart, )
Complainant, )
)
) Appeal No. 05980005
) Appeal No. 01972795
Togo D. West, Jr., )
Secretary, )
Department of the Veterans )
Affairs, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 30, 1997, the complainant initiated a request to the Equal
Employment Opportunity Commission (EEOC) to reconsider the decision
in Hart v. Department of Veterans Affairs, EEOC Appeal No. 01972795
(September 11, 1997). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices or operation of the agency.
64 Fed.Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405(b)). Complainant's request is denied.<1>
On August 16, 1995, complainant filed a formal EEO complaint alleging
discrimination based on race, color, sex, age, disability, and reprisal
with regard to a variety of claims. On January 16, 1996, the agency
issued a final agency decision dismissing all of the claims. Complainant
appealed the final decision to the Commission. The Commission determined
that one claim regarding complainant's proposed removal of June 16, 1995
was in fact a claim involving �constructive discharge.� This claim was
remanded to the agency to supplement the record and to issue a new final
agency decision on the issue.
According to the record, complainant retired on August 31, 1995,
after receiving the proposed removal and an August 16, 1996 decision to
separate. On August 24, 1995, complainant filed an EEO complaint alleging
numerous issues including the issue of his termination. The issue of the
termination was accepted for investigation in a final agency decision
of January 31, 1996 and a supplemental investigation was requested
on November 5, 1996. On December 17, 1996, complainant filed a civil
action in a United States District Court which raised the issue of his
termination as well as various other incidents of claimed mistreatment.
On January 27, 1997, the agency issued a final agency decision (FAD)
which dismissed the issue of complainant's termination and/or forced
retirement due to complainants having filed the civil action mentioned
above. Complainant appealed the FAD to the Commission and the previous
decision affirmed the FAD, noting that the civil action concerned the
same matter as the August 16, 1995 complaint mentioned above.
In his request for reconsideration, complainant asserts that his complaint
should be processed by the agency because: (1) the new �standards� and
new �evidence� concerning his hostile environment claim have not been
considered; and, (2) he voluntarily withdrew his civil complaint because
he was unable to secure counsel. Complainant does not include a copy
of the Court order dismissing his complaint.
EEOC Regulation 29 C.F.R. � 1614.107(c) provides that an agency shall
dismiss a complaint that is the basis of a pending civil action in
a United States District Court in which the complainant is a party
provided that at least one hundred eighty (180) days have passed since
the filing of the administrative complaint. However, where a civil
action is dismissed without prejudice and the Commission has not issued
a final ruling, a complaint may be reinstated in the administrative
process. See James v. Department of Housing and Urban Development,
EEOC Request No. 05970682 (June 17, 1999).
Here, complainant withdrew his civil action voluntarily. According
to records at the District Court, his case was dismissed �with
prejudice.� The complaint may not be reinstated in the administrative
process. Accordingly, after a review of complainant's request for
reconsideration, the previous decision and the entire record, the
Commission finds that complainant's request does not meet the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
DENY complainant's request. The decision of the Commission in Appeal
No. 01972795 remains the Commission's final decision. There is no further
right of administrative appeal from the decision of the Commission on
this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
05-26-00
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:
_______________________
___________________________
1 On 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.