01997253
12-06-2000
Frank J. Ferlita, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Frank J. Ferlita v. Department of Housing and Urban Development
01997253
December 6, 2000
.
Frank J. Ferlita,
Complainant,
v.
Andrew M. Cuomo,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01997253
Agency No. AT 98 05
DECISION
Upon review, we find that the complaint was properly dismissed
on the grounds of failure to state a claim pursuant to 29
C.F.R. �1614.107(a)(1). Complainant claimed that he was discriminated
against when a younger male employee was placed into an attorney position
at a GS-14 level as a result of a settlement of that individual's EEO
complaint. Complainant believed that he should have had an opportunity to
compete for the GS-14 position. Complainant also claimed that the Office
of Departmental Equal Employment Opportunity denied his request for the
services of an Hispanic Equal Opportunity Counselor in January 1998.
Complainant is challenging the agency's decision to award a position
to an individual in order to effectuate a settlement agreement of an
EEO complaint. 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 the complaint. See Faison v. Department of
the Army, EEOC Request No. 05900956 (October 12, 1990). Complainant has
failed to establish that the other party's settlement was executed in
bad faith, i.e., that it is a discriminatory attempt to bestow unequal
benefits under the guise of remedying discrimination.
With regard to complainant's claim that he was improperly denied an
Hispanic Equal Opportunity Counselor, we find that the agency properly
dismissed this claim for failure to state a processable matter.
It is undisputed that complainant was provided with an EEO Counselor,
while not his Counselor of choice, the agency was in compliance with
the regulations regarding assignment of a Counselor. Accordingly, the
agency decision dismissing the complaint on the grounds of 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
December 6, 2000
__________________
Date