01995144_r
10-20-1999
Marilyn Lynch, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Marilyn Lynch, )
Appellant, )
)
v. ) Appeal No. 01995144
) Agency No. 99-2834
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On June 8, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 1, 1999, pertaining to
her complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of mental disability (mental illness) and in
reprisal for prior EEO activity when on October 24, 1998, she received
a proposed letter of termination which was sustained on November 23,
1998, with an effective date of December 5, 1998.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(d), on the grounds that appellant raised the matter
in an appeal to the Merit Systems Protection Board (MSPB). Specifically,
the agency determined that because appellant filed an appeal with the MSPB
on December 14, 1998, and subsequently filed her formal EEO complaint on
February 1, 1999, she elected the MSPB as the forum in which to address
her concerns.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency shall
dismiss a complaint or portion thereof where the complainant raised the
matter in an appeal to the MSPB. In the instant case, the record clearly
demonstrates that appellant raised her December 14, 1998 termination
with the MSPB. As appellant's formal complaint was filed after her
MSPB appeal, we find that she elected to utilize the MSPB as the forum
in which to address the matter.
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth herein.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
October 20, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations