05980377
11-04-1999
Fabiola C. Frank, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Fabiola C. Frank, )
Appellant, )
)
v. ) Request No. 05980377
) Appeal Nos. 01971094, 01974457
Daniel S. Goldin, ) Agency No. NCN-96-KSC-A029
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On February 6, 1998, the appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider correspondence closing
the case of Frank v. National Aeronautics and Space Administration,
EEOC Appeal No. 01971094 and the related decision in Frank v. National
Aeronautics and Space Administration, EEOC Appeal No. 01974457
(December 22, 1997). The correspondence and decision were received at the
appellant's address on January 8, 1998. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that 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 decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
The issue presented is whether the appellant's wish to have a hearing is
grounds for reconsidering the Commission's correspondence and decision
on her consolidated complaint.
The appellant filed EEO complaints, which the agency consolidated in an
October 1996 decision. The decision defined the complaint issues, which
it accepted in part and dismissed in part. In January 1997, the agency
issued a second decision on the same complaint withdrawing the dismissal
of one allegation and re-dismissing some others on different grounds.
Finally, in July 1997, the agency issued correspondence redefining three
of the dismissed allegations as one, and accepting it for investigation.
The appellant's appeal of the agency's first decision was docketed as EEOC
Appeal No. 01971094. Her appeal of the second decision was docketed as
EEOC Appeal No. 01974457. The Commission's decision from EEOC Appeal
No. 01974457 addressed both final agency decisions and the agency's
correspondence of July 1997. The Commission issued correspondence
closing EEOC Appeal No. 01971094 because it was a duplicate of EEOC Appeal
No. 01974457, as noted in the decision from EEOC Appeal No. 01974457.
The Commission's decision in EEOC Appeal No. 01974457 found that the
agency ultimately dismissed two issues, and affirmed the dismissal.
On request, the appellant does not challenge the Commission's findings
in EEOC Appeal No. 01974457. Rather, she states that because 180 days
have passed since the filing of her consolidated complaint, she has a
right to a hearing. In response to the appellant's request, the agency
indicates that in January 1997, it transmitted to the appellant the
investigative report and the right to request a hearing on the issues it
previously accepted in its first final decision. The agency indicates
that in March 1998, it transmitted to the appellant the supplemental
investigative report and right to request a hearing on the remaining
issues it later accepted. The appellant does not contest this.
The appellant's request fails to meet the criteria for reconsideration.
Her wish for a hearing is not a grounds for reconsidering the Commission's
correspondence and decision on her complaint.
Further, if the appellant wished to request a hearing, the forum for doing
so would be in response to the agency's notices of a right to a hearing.
After a review of appellant's request to reconsider, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that her request fails to meet the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission
to deny the appellant's request. The decision of the Commission in
EEOC Appeal No. 01974457 remains the Commission's final decision in
this matter. The Commission's correspondence regarding EEOC Appeal
No. 01971094 will not be modified.
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:
Nov. 4, 1999
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat