Donald E. Ellis, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation Agency.

Equal Employment Opportunity CommissionApr 27, 2000
01a01073 (E.E.O.C. Apr. 27, 2000)

01a01073

04-27-2000

Donald E. Ellis, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation Agency.


Donald E. Ellis, )

Complainant, )

)

v. ) Appeal No. 01A01073

) Agency No. 3-99-3120

Rodney E. Slater, )

Secretary, )

Department of Transportation )

Agency. )

____________________________________)

DECISION

On November 17, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to his

complaint of unlawful employment discrimination in violation of the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The Commission accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office claiming he suffered discrimination

based on age. Informal efforts to resolve his concerns were unsuccessful.

Accordingly, he filed a formal complaint dated September 5, 1999.

Therein, complainant claimed that in effecting a transition to an �MSS pay

system,� the agency provided higher percentage increases in base pay to

those employees who were at lower step levels than those that were given

to employees in higher step levels. Complainant further claimed that

because higher step level employees are generally older than lower step

employees, older employees received less pay in the transition pay system.

On October 15, 1999, the agency issued a FAD dismissing the complaint

for failure to state a claim. The agency determined that complainant's

claim concerned the conversion of supervisory/managerial field personnel

in a new pay system based on nationwide formulas. The agency determined

that complainant's claim was a generalized grievance shared by a large

class, and therefore it failed to state a claim.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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

22, 1994).

Based on a review of the record, the Commission finds that complainant

has failed to show that he suffered an individual or unique harm as a

result of the agency's conversion to a new pay system. Even if the new

pay system resulted in higher percentage increases in base pay to those

in lower step levels, as alleged by complainant, the alleged agency action

would affect all employees at higher step levels. The U.S. Supreme Court

has held that a generalized grievance shared by substantially all or

a large class of individuals is not sufficient to establish standing.

See Warth v. Seldin, 422 U.S. 490 (1975). Therefore, we find that

the alleged event does not render complainant an �aggrieved� employee.

The agency's decision to dismiss the complaint for failure to state a

claim was proper.

Accordingly, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we AFFIRM the

agency's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 27, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.