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).