Frank P. Lukacs, Appellant,v.Donna E. Shalala, Secretary, Department of Health & Human Services, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05970934 (E.E.O.C. Sep. 30, 1999)

05970934

09-30-1999

Frank P. Lukacs, Appellant, v. Donna E. Shalala, Secretary, Department of Health & Human Services, Agency.


Frank P. Lukacs, )

Appellant, )

) Request No. 05970934

v. ) Appeal No. 01970870

)

Donna E. Shalala, )

Secretary, )

Department of Health & )

Human Services, )

Agency. )

)

DENIAL OF RECONSIDERATION

On July 22, 1997, Frank P. Lukacs (hereinafter referred to as appellant)

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Frank P. Lukacs v. Donna

E. Shalala, Secretary, Department of Health & Human Services, EEOC Appeal

No. 01970870 (June 10, 1997), received by appellant on June 25, 1997.

EEOC Regulations provide that the Commissioners may, in their discretion,

reconsider any previous 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 a misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the 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 herein, appellant's request is denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

determined that the actions raised in appellant's complaints were

either encompassed in a civil action, had been rendered moot, had been

abandoned, or constituted an impermissible collateral attack to another

forum's proceeding.

BACKGROUND

The record in the case herein reveals a protracted procedural history

which was accurately set forth in the previous decision. Nevertheless,

the Commission notes that appellant raised various allegations of age

(over 40), national origin (Czechoslovakia), and reprisal discrimination

at the agency's National Institute of Health. Specifically, in agency

complaint number NIH-344-91, appellant asserted that the agency failed

to consider his education when evaluating him for Contract Specialist

positions under vacancy announcement numbers OD-90-0395 and CA-91-0014A.

In complaint number NIH-120-92, which included three informal complaints,

the agency defined the issues as including: 1. appellant's nonselection

for a Contract Specialist position under vacancy announcement number

CA-91-0014A; 2. appellant's nonselection for a Contract Specialist

position under vacancy announcement number OD-90-0395; 3. the failure

to allow appellant to attend a Federal Contract Law Course; 4. the

rating criteria for the Contract Specialist position advertised in

vacancy announcement number DK-91-0490; and 5. the rating criteria for

the Contract Specialist position advertised in vacancy announcement

number OD-91-0063. As noted in the previous decision, appellant did

not challenge the agency's definition of the issues raised in the latter

complaint, despite filing two appeals with regard thereto.<1>

On October 2, 1996, an EEOC Administrative Judge (AJ) issued an Order of

Dismissal in agency complaint numbers 344-91 and 120-92, stating that the

issues raised in those complaints were included in a civil action filed

by appellant. The AJ rejected appellant's argument that his civil action

included only the positions advertised in vacancy announcement numbers

OD-91-0162 and CA-91-0159. The AJ noted that appellant's reference

to other positions expanded the scope of his civil action. The agency

subsequently issued a final decision dismissing appellant's complaints.

The previous decision affirmed the agency's dismissal of appellant's

complaints, finding that appellant's broadly worded civil action

encompassed all of the matters concerning the evaluation of candidates

for positions and appellant's nonselection therefor. The previous

decision further determined that appellant's allegation concerning the

Federal Contract Law course had been rendered moot when appellant left

the agency. The previous decision stated that, to the extent appellant

alleged in complaint number 120-92 that he was told he would not receive

an �excellent� performance rating or promotion, he abandoned that issue

when he failed to challenge the agency's framing of the issues in his

complaint. Finally, the previous decision concluded that appellant's

general allegations of perjury, coverup, and obstruction of justice

constituted an impermissible collateral attack on the proceeding of

another forum.

In his request for reconsideration, appellant asserted that his civil

action was not broadly worded, and that the agency has attempted to

limit the scope thereof. Appellant generally questioned the Commission's

ability to issue a decision without having a copy of the investigation or

request for a hearing. Appellant asserted that allegations of perjury,

coverup, and obstruction of justice are contained in the record.

The agency did not submit a response to appellant's request for

reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited. Lopez

v. Department of the Air Force, EEOC Request No. 05890749 (September

28, 1989).

After a careful review of the previous decision, appellant's request

for reconsideration, and the entire record, the Commission finds that

appellant's request fails to meet the criteria in 29 C.F.R. �1614.407(c).

Specifically, appellant has presented no evidence to show that the

agency's dismissal of his complaint was improper. As set forth in

the previous decision, 29 C.F.R. �1614.410 provides that filing a civil

action under �1614.408 shall terminate Commission processing of an appeal.

Further, a review of Civil Action Number 96-2913 filed by appellant in

the U.S. District Court for the District of Maryland reveals that while

appellant initially cited two vacancy announcements (OD-91-0162 and

CA-91-0159), he repeatedly made reference to �many other� positions,

�numerous other� job vacancies, �similar and concurrent and subsequent

job vacancy announcements,� �several dozen positions,� and the �repeated�

denial of selections and promotions. (Civil Action pgs. 14, 15, 19,

23, 25, 73, 77, and 78). Appellant also referenced vacancy announcement

number CA-91-0014. While appellant asserted that the agency has tried to

narrow the scope of his civil action, he did not submit any evidence to

support that contention, or evidence showing that the Court has limited

his claim.

Further, the Commission finds the previous decision's treatment of

appellant's other allegations to have been proper. While the report of

investigation and letter requesting a hearing are absent from the record

on appeal, the record included the EEO Counselors' reports and formal

complaints herein, as well as various statements submitted by appellant

describing the matters at issue. Thus, the Commission is adequately

able to determine what issues appellant has raised. The Commission also

agrees with the previous decision that by not challenging the agency's

framing of the issues in his complaints, he has essentially abandoned

the matter concerning the �threat� not to promote him or give him an

�excellent� performance rating. Finally, appellant has still failed to

identify any instances of perjury, coverup, or obstruction of justice

which could properly be pursued in the EEO forum. Consequently, based

on our review of the record, we find that appellant has failed to provide

evidence which would warrant a reconsideration of the previous decision.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request fails to meet the criteria of 29 C.F.R. �1614.407(c), and

it is therefore the decision of the Commission to DENY appellant's

request. The decision in EEOC Appeal No. 01970870 (June 10, 1997)

remains the Commission's final decision. There is no further right of

administrative appeal on a decision of the Commission on this Request

for Reconsideration.

STATEMENT OF RIGHTS - ON 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:

09-30-99

Date Frances M. Hart

Executive Officer

Executive Secretariat1Lukacs

v. Department of Health & Human

Services, EEOC Appeal No. 01922704

(January 12, 1993), and Lukacs

v. Department of Health & Human

Services, EEOC Appeal No. 01932116

(August 25, 1995).