0120080746
03-28-2008
Charles Kennedy, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Charles Kennedy,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120080746
Agency No. 9X1M07051
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 9, 2007, dismissing 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a complaint dated September 7, 2007, complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when, on
June 14 and July 5, 2007, he received two proposed mediation settlement
agreements containing "unlawful conditions." Specifically, complainant
objected to language requiring him to withdraw his pending EEO complaints
and waive any other legal claims he may have had relating to the events
at issue in his complaints in exchange for the actions of the agency
promised in the settlement agreements. The proposed agency actions
included granting complainant a permanent reassignment, restoration of
leave, altering a performance appraisal, and removing negative comments
from his personnel folder.
EEOC regulations provide that 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). If complainant does not allege
facts that indicate he is aggrieved, his complaint may be dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
In the instant case, the Commission finds that the complaint fails to
state a claim. The only issue raised in the complaint is a challenge
to the language in the proposed settlement agreements. Without more,
complainant has not alleged personal harm for which there is a remedy
under the law. The Commission has long held that a complainant
may validly waive those claims arising from discriminatory acts or
practices which antedate the execution of a settlement agreement.
Vigil v. Department of the Army, EEOC Request No. 05960521 (June 22,
1998), (citing Bimes v. Department of Defense, EEOC Request No. 05970359
(March 27, 1997). There is nothing in this case which suggests that
agency was asking complainant to sign an agreement that waives prospective
Title VII rights.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
March 28, 2008
__________________
Date
2
0120080746
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120080746