Waverly L. Clark, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01995084 (E.E.O.C. Jan. 19, 2000)

01995084

01-19-2000

Waverly L. Clark, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Waverly L. Clark, )

Complainant, )

)

v. ) Appeal No. 01995084

) Agency No. 93-2787

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

_______________________________ )

DECISION

Complainant filed the instant appeal from the agency's May 7, 1999

decision finding that the agency had complied with the terms of an agency

decision dated April 26, 1995.<1>

Complainant previously filed an appeal with the Commission alleging

non-compliance with the agency's April 26, 1995 decision. The Commission

issued a decision on August 26, 1997 finding that the agency's April

26, 1995 decision required complainant to be provided with back pay,

interest, and training (the Commission indicated that training was

"implicit" in the relief). Clark v. Department of Veterans Affairs,

EEOC Appeal No. 01956332 (Aug. 26, 1997). The Commission found that

the agency had failed to submit evidence of compliance with the April

26, 1995 decision. Id. The Commission remanded the matter so the

agency could supplement the record with evidence of compliance with the

corrective action contained in the April 26, 1995 decision. Id.

In the May 7, 1999 decision the agency stated that it had conducted

a supplemental investigation which revealed: (1) complainant was paid

an adjustment for back pay in the amount of $9,705.27 on September 29,

1995; (2) complainant was paid for interest in the amount of $740.77

on October 25, 1995; and (3) complainant received the required training

for the position to which he was appointed.

The regulation set forth at 64 Fed. Reg 37,644, 37,660 (1999) (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.504(a)) provides

that a final action that has not been the subject of an appeal or civil

action shall be binding on the agency. If the complainant believes that

the agency has failed to comply with the terms of a decision, then the

complainant shall notify the EEO Director of the alleged noncompliance

"within 30 days of when the complainant knew or should have known of

the alleged noncompliance." 29 C.F.R. � 1614.504(a).

The record shows that the payments of back pay and interest<2> were

made as claimed by the agency. Complainant does not argue that these

payments were not made or that the payments were inadequate. The record

shows that complainant completed the 160 hour Basic VA Police Officer

Training Course. Complainant does not argue that he was not provided

such training or that the training he was provided was inadequate.

Complainant does not argue that the agency failed to comply with any

other provision of the agency's April 26, 1995 decision. Therefore,

we find that complainant has failed to show that the agency did not

comply with the April 26, 1995 agency decision.

The agency's determination finding that complainant failed to show

that the agency did not comply with the agency decision dated April 26,

1995 is AFFIRMED.

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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 (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:

January 19, 2000

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:

_____________________ _________________________ 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.

2The record indicates that interest was actually paid in the amount of

$740.87, which is $.10 more than claimed in the agency's May 7, 1999

decision.