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.