_________________ 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.