01990237_r
09-14-1999
Prithvi C. Lall, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Prithvi C. Lall, )
Appellant, )
)
v. ) Appeal No. 01990237
) Agency No. 98-00024-008
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On October 7, 1998, appellant filed an appeal with this Commission from
a final agency decision (FAD) dated August 12, 1998, pertaining to his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq.<1> In his complaint, appellant alleged that he was
subjected to discrimination on the bases of race (East Indian), color
(brown), national origin (India), and age (date of birth September 20,
1931) when on or about March 17, 1998, appellant's application for
the Patent Counsel position in the Office of Counsel, London, U.K.,
was rejected as being untimely.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(e), for being moot. Specifically, the agency found
that no one was hired under the vacancy announcement in question,
and appellant's application subsequently was entertained when the
position was re-advertised. The agency noted that in his formal
complaint, appellant stated that he would withdraw his complaint if
his application was entertained. Alternatively, the agency dismissed
appellant's complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for failure to state a claim.
On appeal, appellant argues, through his attorney, that his complaint is
not moot. Appellant contends that the original vacancy announcement was
not canceled until six weeks after appellant filed the present complaint,
but admits that his application was considered under the re-advertisement
for the position. Further, appellant argues that the rejection of his
initial application clearly affected a term, condition, or privilege of
his employment.
In response, the agency argues that the only relief to which appellant
would be entitled, if his complaint was successful, would be to have his
application considered. Since appellant's application ultimately was
considered, the effects of the alleged discrimination were completely
and irrevocably eradicated. Further, the agency argues that there is no
likelihood that the incidents will recur, because the same officials that
rejected appellant's first application for untimeliness, later accepted
appellant's application under the re-advertisement. The agency also
notes that appellant never requested compensatory damages. Finally, the
agency contends that appellant has suffered no harm to his employment,
because no selection was made under the original vacancy announcement.
EEOC Regulation 29 C.F.R. �1614.107(a) 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. 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 (Apr. 21, 1994).
Generally, 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. 05960752 (Nov. 20, 1998); Grace v. Department of the
Army, EEOC Request No. 05940969 (May 18, 1995). In the present case,
appellant has not alleged that the vacancy announcement was canceled
for a discriminatory motive. See Ladner v. Department of the Treasury,
EEOC Appeal No. 01975681 (Apr. 17, 1998) (allegation that announcement was
canceled in order to avoid giving complainant a position states a claim).
In fact, appellant admits that he was subsequently considered for the
position when the vacancy was re-advertised. Therefore, appellant failed
to state a claim.<2>
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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:
Sept. 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations 1The agency contends that
appellant's appeal was untimely, and notes that although appellant
claims to have filed an appeal on September 8, 1998, he did
not submit his appeal to the Commission until October 7, 1998.
However, the agency was unable to supply a copy of a certified mail
return receipt or any other material capable of establishing the
date appellant received the agency's final decision. Accordingly,
since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.
2Since we are affirming the agency's dismissal on the grounds of failure
to state a claim, we will not address the agency's alternative grounds
for dismissal, i.e., that appellant's complaint is moot.