_________________ 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.