01994043
08-15-2002
James A. Templer, Complainant, v. Tommy G. Thompson, Secretary Department of Health and Human Services (Food and Drug Administration), Agency.
James A. Templer v. Department of Health and Human Services
01994043
August 15, 2002
.
James A. Templer,
Complainant,
v.
Tommy G. Thompson,
Secretary
Department of Health and Human Services
(Food and Drug Administration),
Agency.
Appeal No. 01994043
Agency No. 02098
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision 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. The issue on appeal is whether the
agency properly dismissed complainant's complaint pursuant to former 29
C.F.R. � 1614.107(a) (now 29 C.F.R.� 1614.107(a)(1)) on the ground that
complainant failed to state a claim.
BACKGROUND
In a complaint dated November 24, 1997, the complainant, a Compliance
Officer, GS-13, in the Food and Drug Administration's District Office
in Dallas, Texas, alleged that he was discriminated against on the basis
of race (Caucasian) when he did not have the opportunity to compete for
either the Resident-In-Charge position, GS-13, or the Special Assistant to
the Director of Investigations Branch position, GS-13, in Lubbock, Texas.
Another employee, E1 (Hispanic), as part of an EEO settlement agreement,
was transferred to the latter position. Complainant alleged in his
formal complaint that two supervisors, S1 (Hispanic) and S2 (Hispanic)
discriminated against non-Hispanic individuals when they relocated E1
to Lubbock, Texas as part of a settlement agreement.
ANALYSIS AND FINDINGS
A complaint states a claim under our regulations if the complainant is
an aggrieved employee and has alleged employment discrimination covered
by the EEO statutes. Hobson v. Department of the Navy, EEOC Request
No. 05891133 (March 2, 1990). 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).
In this case, complainant alleges that he was discriminated against
when a position was awarded to a Hispanic male employee pursuant to
a settlement agreement. It has been the Commission's policy that
a settlement agreement 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. �Bad faith"
in these circumstances would require a showing that the agency entered
into the settlement agreement for the express purpose of discriminating
against complainant under the guise of resolving an EEO dispute. See
e.g., Raimer v. Department of Defense, EEOC Request No. 05930735 (April
1, 1994); Bhuller v. USPS, EEOC Request No. 05910523 (August 1, 1991);
Faison v. Department of the Navy, EEOC Request No. 05900956 (October 12,
1990). Complainant's allegations are insufficient to meet this showing
and therefore the agency's dismissal of his complaint 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
August 15, 2002
_________________
Date