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.