Published dismissal on the basis of failure to state a claim and spin-off complaint. Other issues raised were CP’s frustration with the settlement process. The case law referenced in this case stated that settlements cannot be considered discriminatory unless the agency enters them in bad faith. See Putnam v. Department of Justice EEOC Appeal No 01A11178 (February 26, 2001).
This case can be located at: H:\Cases on H Drive\Case Law\Blogging 101.docx
Filed under Failure to State a Claim, Spin Off Complaint
George Putnam v. Department of Justice
01A11178
February 26, 2001
.
George Putnam,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A11178
Agency No. I-00-C086
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. § 1614.405.
Complainant contacted the EEO office claiming he suffered racial
discrimination when on March 8, 2000, he became aware that the agency
entered into a settlement agreement with a co-worker. Complainant
believed the agreement was a “payoff” to the co-worker because he
was Hispanic. Informal efforts to resolve complainant's concerns were
unsuccessful. On May 23, 2000, complainant filed a formal complaint.
On November 13, 2000, the agency issued a final decision dismissing the
complaint for failure to state a claim. The agency noted that claims
of discrimination based on another's settlement agreement fail to state
a claim when there is not a showing that the agreement was executed in
bad faith. The agency stated that the record did not suggest that the
agreement was entered for the express purpose of discriminating against
complainant under the guise of resolving an EEO complaint.
On appeal, complainant, through his attorney, contends that the
agreement was entered in bad faith. Complainant argues that although
the final agency decision only recommended a few thousand dollars, the
agreement was for $123,000.00. Further, complainant noted that prior
to the execution of the agreement, an agency official admitted he was
not aware of the co-worker's prior EEO activity. Finally, complainant
asserts that the agency has engaged in a pattern of favoritism, with
respect to the Hispanic co-worker.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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 21, 1994).
Complainant challenges the agency's decision to award $123,000.00 to
a co-worker in order to effectuate the settlement of a civil action.
The Commission has previously held that a claim of discrimination based
on another party's settlement agreement fails to state a claim where
there has been no showing that the agreement was executed in bad faith,
because processing such claims would discourage voluntary conciliation
of complaints. See Faison v. Department of the Army, EEOC Request
No. 05900956 (October 12, 1990); Snapp v. Department of Defense, EEOC
Request No. 05890439 (August 3, 1989). Although complainant argues that
the co-worker has been given preferable treatment due to his race and
that the amount provided for by the settlement agreement was too high,
we find that he has failed to show that the agreement was executed in
bad faith; i.e. that it is a discriminatory attempt to bestow unequal
benefits under the guise of remedying discrimination. Accordingly, the
agency's decision to dismiss the complaint for failure to state a claim
was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 26, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
Filed under Failure to State a Claim
Monique McClain v. United States Postal Service
01A14920
July 18, 2002
.
Monique McClain,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14920
Agency No. 1-D-284-0010-01
DECISION
Complainant appealed to this Commission from the agency's July 9,
2002 dismissal of her employment discrimination complaint for failure
to state a claim. In her complaint, complainant alleged that she was
subjected to discrimination on the bases of race (African-American)
and sex (female) when on March 10, 2001, a coworker was promoted to
the position of Training Technician and complainant was excluded from
consideration by a grievance settlement agreement.
A grievance settlement may not be considered an independent act of
discrimination against those not benefitted by the agreement, unless
there is proof of bad faith in the making of the agreement. See Raimer
v. Department of Defense, EEOC Request No. 05930735 (April 1, 1994)
(citing Faison v. Department of the Navy, EEOC Request No. 05900956
(October 12, 1990)) (nonselection issue fails to state a claim when reason
for selection was EEO settlement); Bigsby v. United States Postal Service,
05920258 (May 29, 1992) (challenge to grievance settlement fails to
state a claim). In this case, appellant presented no evidence that the
agency's settlement of a co-worker's grievance settlement was entered
into in bad faith. Accordingly, the agency's dismissal for failure to
state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 18, 2002
__________________
Date
Employment Complaints Are Us 