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.
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Putnam v. Department of Justice
Filed under Failure to State a Claim