05960752
11-20-1998
_________________, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency,
_________________ v. Department of the Army
05960752
November 20, 1998
_________________, )
Appellant, )
)
v. ) Request No. 05960752
) Appeal No. 01953367
Louis Caldera, ) Agency No. FO9502F0010
Secretary, )
Department of the Army, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 31, 1996, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in _________________ v. Togo D. West, Jr., Secretary, Department of the Army,
EEOC Appeal No. 01953367 (July 9, 1996). 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 three criteria prescribed by 29 C.F.R. �1614.407(c): that new and
material evidence was available that was not available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous
decision involved an erroneous interpretation of law or regulation, or
material fact, or a misapplication of established policy, 29 C.F.R. �
1614.407(c)(2); or that the decision is of such exceptional nature as
to have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3).
For the reasons set forth herein, the Commission denies the agency's
request.
ISSUES PRESENTED
Whether the agency properly dismissed appellant's complaint on the
grounds that it set forth an allegation concerning a proposed selection
in October 1994.
Whether grounds exist for extending the 45-day time limit in which to
contact an EEO counselor and allowing appellant to do so in connection
with a nonselection that occurred in February 1996.
BACKGROUND
Appellant filed a complaint in which he alleged that the agency
discriminated against him on the basis of sex by not selecting him
for a supervisory contracting specialist position in October 1994.
He maintains that a female candidate with less experience, was chosen for
the position on October 19, 1994. On March 1, 1995, the agency issued a
final decision dismissing the complaint under 29 C.F.R. � 1614.107(e), on
the grounds that it concerned a proposed personnel action. Specifically,
the agency found that there had been no final selection on the supervisory
contracting specialist position at issue.
The previous decision found that a female had, in fact, been selected
for the position in 1994. It concluded that the nonselection was
not a proposed action and ordered the agency to process the remanded
allegation. In its request for reconsideration, the agency reiterates
that the selection of the selectee in 1994 never culminated in an actual
appointment to the position. The agency presented a referral selection
register for the 1994 vacancy announcement, dated August 30, 1995,
which specifies that no selection had been made.
The agency also submitted another referral record showing that the
position was readvertised under a different vacancy announcement in
December 1995, and that another female selectee was chosen for the
position on February 23, 1996. The agency also noted that appellant
was on the best-qualified list for this second vacancy, and that he was
not selected. There are no indications in the record before us that
appellant contacted an EEO counselor regarding the second nonselection.
Appellant responds that the selecting official informed him on October
19, 1994, that he had already offered the job to the selectee, and the
selectee had accepted the offer. He stated that the agency delayed
placing the 1994 selectee in her position, and that this delay was
occasioned by an investigation from the inspector general and perhaps
by his own complaint. He also stated that the 1994 selectee withdrew
her acceptance and accepted a position elsewhere. He maintains that the
discriminatory nonselection had occurred in 1994. He does not, however,
address his nonselection in February 1996.
ANALYSIS AND FINDINGS
October 1994 Vacancy
Generally, where the agency cancels a vacancy announcement without
making a selection, appellant does not suffer any personal harm
that would render him aggrieved and therefore fails to state a claim.
Grace v. Department of the Army, EEOC Request No. 05940969 (May 18, 1995);
Hena v. Federal Energy Regulatory Commission, EEOC Request No. 05940250
(September 9, 1994); Jenkins v. Department of the Army, EEOC Request
No. 05930365 (October 22, 1993). Where, as here, however, appellant
alleges that the agency canceled a vacancy after making a selection,
and that the cancellation occurred under circumstances suggesting a
deliberate intent to avoid selecting him, he states a claim. Shively
v. Department of the Army, EEOC Request No. 05930361 (September 30,
1993); Bradford v. Department of Defense, EEOC Request No. 05920510
(August 6, 1992); Pearcy v. Equal Employment Opportunity Commission,
EEOC Request No. 05890567 (October 12, 1989).
Just as in Pearcy, there were allegations that another candidate had
already been selected, and that the selection had been put on hold
afterward, under circumstances suggesting that the agency deliberately
sought to avoid choosing appellant. We note that the agency in Pearcy
canceled the selection after the complainant told the agency that she
would file an EEO complaint. In the instant case, appellant alleged
that the agency delayed the appointment of the selectee in response
to inquiries from the inspector general. Moreover, since the agency
had already chosen the selectee when appellant filed his complaint,
the agency's decision to choose the selectee to fill 1994 vacancy was
a completed personnel action, and not a proposed action, as the agency
contends. Therefore, under Pearcy, appellant states a claim with respect
to the cancellation of the 1994 vacancy.
February 1996 Vacancy
The Commission has the discretion to extend the 45-day time limit
for contacting an EEO counselor as long as the party seeking the
extension provides a sufficient reason for doing so. See 29 C.F.R. �
1614.105(a)(2).<1> This case was not a situation in which appellant was
aware of his rights but did nothing. The selecting official offered
the selectee the position on October 17, 1994, and notified appellant
two days later that he had chosen the selectee. Appellant contacted the
counselor 28 days after he received that notification. Even though the
1996 vacancy is a separate and distinct personnel action from the 1994
vacancy, the particulars of the two vacancies are identical. Appellant's
correspondence throughout the processing of his complaint reflects his
belief that a selection had already occurred in 1994. We find that
appellant's belief that he did not have to contact a counselor regarding
the 1996 vacancy was reasonable in light of what the selecting official
told him back in October 1994. We will therefore exercise our discretion
and allow appellant to contact an EEO counselor on the 1996 nonselection.
CONCLUSION
After a review of the agency's request to reconsider, appellant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request does not meet the criteria of
29 C.F.R. �1614.407(c). It is therefore the decision of the Commission to
deny the agency's request. The decision of the Commission in EEOC Appeal
No. 01953367 remanding the allegation of nonselection in October 1994 for
further processing is affirmed. The agency shall process the remanded
allegation in accordance with our order below. The agency shall also
afford appellant the opportunity to contact an EEO counselor in connection
with the 1996 nonselection. There is no further right of administrative
appeal from a decision of the Commission on request for reconsideration.
ORDER (E1092)
1. The agency shall process the allegation concerning the cancellation
of the October 1994 vacancy announcement in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that
it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request. A copy of the agency's
letter of acknowledgement to appellant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to
the Compliance Officer as referenced below.
2. The agency shall provide written notice to appellant that he has
45 days from the date that he receives this decision to contact an EEO
counselor with regard to his nonselection for the position of Supervisory
Contracting Specialist in February 1996, under Vacancy Announcement No.
14-96-037. The 45-day time period will begin to run from the date that
appellant receives a copy of the agency notice.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. 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:
NOV 20, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
1The agency shall extend the 45-day time limit . . . for . . . reasons
considered sufficient by the . . . Commission.