05980700
10-25-1999
Eufrosina Diaconu, Appellant, v. William S. Cohen, Secretary, Department of Defense, Defense Logistics Agency, Agency.
Eufrosina Diaconu, )
Appellant, )
)
v. ) Request No. 05980700
) Prior Request No. 05960336
William S. Cohen, ) Appeal No. 01950488
Secretary, ) Agency No. 93-016
Department of Defense, )
Defense Logistics Agency, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
Appellant timely initiated what appears to be a request to the
Equal Employment Opportunity Commission to reconsider the decision
in Eufrosina Diaconu v. William S. Cohen, Secretary, Department of
Defense - Defense Logistics Agency, EEOC Request No. 05960336 (March
12, 1998). EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth below, the Commission denies appellant's request.
Appellant filed complaint No. 93-016, in which she alleged that the
agency retaliated against her for having filed a previous EEO complaint
by not detailing her to an acting division chief position in June
of 1993. The agency issued a final decision of no discrimination,
which appellant appealed. On March 1, 1996, the Commission issued a
decision in which it dismissed appellant's appeal on the ground that
appellant had filed a civil action. On March 12, 1998, pursuant to
appellant's request for reconsideration, the Commission issued its
decision in EEOC Request No. 05960336. In that decision, the Commission
determined that the initial decision erred in dismissing the complaint.
However, it found no discrimination on the merits. Since the decision
in Request No. 05960336 addressed the merits of appellant's complaint
for the first time, the parties were given reconsideration rights.
In her ensuing request for reconsideration, appellant neither raises nor
addresses the June 1993 detail denial that was at issue in Complaint
No. 093-016. She has not presented any argument or evidence directed
toward any of the reconsideration criteria. Instead, she raises new
matters, none of which were at issue in Complaint No. 93-016.<1>
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to
deny appellant's request. The decision of the Commission in Request
No. 05960336 remains the Commission's final decision in this matter.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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.
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:
Oct. 25, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat1In her request for reconsideration,
appellant appears to be asking the Commission to rule on these new
issues. Appellant is advised that if she wishes to pursue, through
the EEO process, the additional allegations of discrimination that
she raised for the first time on request for reconsideration, she
shall initiate contact with an EEO counselor within 15 days after
the date that she receives this decision. The Commission advises
the agency that if appellant seeks EEO counseling regarding the new
allegations within the above 15-day time period, the date appellant
filed the appeal statement in which she raised these allegations
with the agency shall be deemed to be the date of the initial EEO
contact, unless she previously contacted a counselor regarding
these matters, in which case the earlier date would serve as the
EEO counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).