_________________, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
05a00064 (E.E.O.C. Apr. 24, 2000)

05a00064

04-24-2000

_________________, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


_________________ v. Department of the Navy

05A00064

April 24, 2000

_________________, )

Complainant, ) Request No. 05A00064

) Appeal No. 01990237

v. ) Agency No. 98-00024-008

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On October 20, 1999, _________________ (complainant)/the Department of

the Navy (agency) timely initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision in

_________________ v. department of the Navy, EEOC Appeal No. 01990237

(September 14, 1999).<1> EEOC regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. �1614.405(b)). The party requesting

reconsideration must submit written argument or evidence which tends

to establish one or more of the following two criteria: the appellate

decision involved a clearly erroneous interpretation of material fact

or law; or the decision will have a substantial impact on the policies,

practices or operations of the agency. Id. For the reasons set forth

herein, appellant's request is granted.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's dismissal of complainant's complaint on the ground of

failure to state a claim.

BACKGROUND

Complainant, on or about March 19, 1998, applied for a associate counsel

position by responding to a posted vacancy announcement, which contained

no deadline for the submission of applications. After applying,

complainant was informed that his application would not be considered

because it was untimely submitted. At this point, complainant informed

the agency that it could not be untimely since there was no submission

deadline. According to the record, the agency responded by saying they

do not post deadlines on the vacancy announcements. Believing that

the agency was discriminating against him, complainant contacted an

EEO Counselor. On June 12, 1998, complaint filed a formal complaint

of discrimination claiming that he was discriminated against when his

application for a vacancy announcement was not accepted. Subsequently,

the agency in July 1998 canceled the vacancy and then reopened it on or

about July 17, 1998. Thereafter, the agency, on August 8, 1998 issued

a final decision dismissing the above complaint on two grounds. First,

the complaint was dismissed on the ground of being moot and second,

it was dismissed for failure to state a claim.

On appeal, complainant argues that not only is his case ripe, but it

also states a claim, because not only was his application rejected,

but the vacancy announcement was later canceled and then reopened so

as to create a larger pool of applicants so he ultimately would not

be selected. Notwithstanding this, the previous decision affirmed the

agency's dismissal of the complaint. However, the previous decision only

addressed the claim that the vacancy was canceled and then reopened on

the procedural ground of failure to state a claim, and the decision did

not address the original claim that complainant was discriminated against

when his application was not accepted. Furthermore, in the decision,

the alternate ground for dismissal (mootness) was not addressed.

On request for reconsideration, complainant claims that the previous

decision erroneously construed the facts of the claim and misapplied

the law. However, in response to this assertion, the agency argues that

the complaint does not state a claim because during the complaint process,

complainant did not allege discrimination based on the cancellation of

the vacancy announcement. Rather, he raised this issue for the first

time on appeal.

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 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). Furthermore, a request to reconsider is not "a form of a

second appeal." Regensberg v. United States Postal Service, EEOC Request

No. 05900850 (September 7, 1990); Spence v. Department of the Army, EEOC

Request No. 05880475 (May 31, 1988) .

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at and

hereinafter referred to as 29 C.F.R. �1614.107(a)(2)) states, in pertinent

part, that an agency shall dismiss a complaint or portion thereof which

raises a matter that has not been brought to the attention of an EEO

Counselor, and is not like or related to a matter on which the complainant

has received counseling. A later claim or complaint is "like or related"

to the original complaint if the later claim or complaint adds to or

clarifies the original complaint and could have reasonably been expected

to grow out of the original complaint during the investigation. See Scher

v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995);

Calhoun v. United States Postal Service, EEOC Request No. 05891068 (March

8, 1990).

In the instant case, the agency argues that the claim on appeal regarding

the vacancy cancellation should not be addressed because it was not

raised before an EEO Counselor. Be this as it may, the Commission finds

that this claim is so closely related to that raised in the complaint,

that it clarifies the original claim and could have reasonably blossomed

out of the original claim during the investigation. Therefore, the

prior decision properly considered this matter. However, in determining

whether the above states a claim, 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. �1614.107(a)(1)) provides,

in relevant part, that an agency shall dismiss a complaint, or portion

thereof, that fails to state a claim. An agency shall accept a complaint

from any aggrieved employee or applicant for employment who believes

that he or she has been discriminated against by that agency because of

race, color, religion, sex, national origin, age or disabling condition.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. �1614.103); �1614.106(a). The Commission's federal

sector case precedent has long defined an "aggrieved employee" as one

who suffers a present harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 22, 1994).

Moreover, when an agency cancels a vacancy announcement without

making a selection, the complainant suffers no actionable harm from

not being selected. See Van Nest v. Department of the Army, EEOC

Request No. 05940969 (May 18, 1995). Nonetheless, if the complainant

alleges that the vacancy announcement was canceled for a discriminatory

motive, such that the announcement was canceled in order to avoid giving

complainant a position, it does state a claim. See Ladner v. Department

of the Treasury, EEOC Appeal No. 01975681 (April 17, 1998). Here, the

complainant's appeal brief clearly states that the cancellation and the

rejection of his application was for the ulterior purpose of creating

a larger applicant pool so he would ultimately not be selected.

Therefore, complainant would have stated a cognizable claim.

Furthermore, the prior decision did not address the initial claim

that complainant was discriminated against when his application was not

considered. This claim does in and of itself states a claim. Volume 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as 29

C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an agency shall

dismiss a complaint, or portion thereof, that fails to state a claim.

An agency shall accept a complaint from any aggrieved employee

or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.103); � 1614.106(a). The Commission's federal sector case precedent

has long defined an "aggrieved employee" as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 22, 1994). Here, complainant claim is

sufficient to render him an aggrieved employee. Because, complainant

has claimed that the adverse action was based on race, color and age,

he has raised an allegation within the purview of the EEOC regulations.

Despite the fact that this complaint does in fact state a claim, the

complaint was rendered moot because, complainant's application was

later considered. The Commission notes, that complainant in his formal

complaint specifically states that as requested relief, he would like

his application to be considered. According to the record, complainant's

application was later considered under the second vacancy announcement.

Therefore, since complainant has received the relief he initially

requested, the Commission considers the instant complaint to be moot.

CONCLUSION

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds

that although complainant's request meets the criteria of 29 C.F.R.

�1614.405(b), and it is the decision of the Commission to DENY the

complainant's request because it has been determined that the instant

complaint has been rendered moot. The decision of the Commission in

Appeal No. 01990237 (September 14, 1999) and the final agency decision

is AFFIRMED. There is no further right of administrative appeal on the

decision of the Commission on a Request to Reconsider.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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. 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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:

April 24, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

ector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.