01985219
09-10-1999
John D. Campbell, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
John D. Campbell v. Department of Agriculture
01985219
September 10, 1999
John D. Campbell, )
Appellant, )
) Appeal No. 01985219
v. ) Agency No. 980415
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., and the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The FAD
was dated May 30, 1998. The appeal was postmarked on June 20, 1998.
Accordingly, the timely appeal is accepted in accordance with EEOC Order
No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on March 2, 1998, alleging
discrimination on the bases of sex (male) and age (51) when he was
not given the opportunity to compete for the newly established GS-15,
Director position in the Import/Export Division.
In its FAD, the agency dismissed the complaint for failure to state a
claim because the position was created for a female employee pursuant
to an EEO settlement agreement. This appeal followed.
ANALYSIS AND FINDINGS
The federal courts and the Commission have held that as a matter of
law, resolution of a discrimination complaint may not be considered an
independent act of discrimination against those not benefitted by the
agreement "unless there are allegations of bad faith in the making of
the agreement, that is allegations that the agreement was not a bona
fide attempt to conciliate the claim, but rather an attempt to bestow
unequal employment benefits under the guise of remedying discrimination."
Bhuller v. United States Postal Service, EEOC Request No. 05910523
(August 1, 1991)(citing EEOC v. McCall Printing Corp., 633 F.2d 1232,
1237-38 (6th Cir. 1980)). Since the appellant has not asserted that the
settlement agreement was made in bad faith, we agree with the agency
that appellant does not state a claim. He is merely challenging the
resolution of a discrimination complaint which, in and of itself, does
not state a claim under our regulations.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
September 10, 1999
______________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations