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

Equal Employment Opportunity CommissionMay 23, 2000
01a00970 (E.E.O.C. May. 23, 2000)

01a00970

05-23-2000

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


Donald K. Gallion, )

Complainant, )

)

v. ) Appeal No. 01A00970

) Agency No. DOT-3-99-3117

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated October 15, 1999, dismissing 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> In

his complaint, complainant alleged that he was subjected to discrimination

on the basis of age when, effective October 1998, complainant was given

a smaller pay increase than younger similarly situated workers.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that the claim raised a general grievance,

not any individual harm suffered by complainant. In its decision, the

agency explained that a new pay system was developed. As part of this

system, lower-tiered managers received larger increases than upper-level

management. Despite the increases, the upper-level managers still

received a considerably larger salary that their lower-tier counterparts.

The decision also discussed the �objective� criteria controlling the

pay system.

On appeal, complainant argues that the system resulted in disparate

treatment for older members of management -- they did not receive

as large an increase as lower-tiered, generally younger managers.

Complainant contends that he suffered a personal injury by not being

given as high a pay increase as younger managers. Complainant admits

that he shares the same harm as all other upper-level managers.

�When the asserted harm is a �generalized grievance' shared in

substantially equal measure by all of a large class of citizens, that

harm alone normally does not warrant the exercise of jurisdiction.�

See Warth v. Seldin, 422 U.S. 490, 499 (1975). The Commission has held

that generalized grievances, alleging that the members of one group are

afforded benefits not offered to a protected group, fail to state a claim.

See Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508

(September 11, 1997) (claim that nurse practitioners in one unit received

more favorable treatment than nurse practitioners in other units was a

generalized grievance); Rodriguez v. Department of the Treasury, EEOC

Appeal No. 01970736 (August 28, 1997) (claim that there was an imbalance

in favoring of African-Americans, against Hispanics, in development and

promotion opportunities was a generalized grievance purportedly shared

by all Hispanic co-workers and therefore failed to state a claim).

To state a claim, complainant �must allege a distinct and palpable

injury to himself, even if it is an injury shared by a large class

of other possible litigants.� See Warth v. Seldin, 422 U.S. at 500.

The Commission also has found that generalized grievances fail to

identify a specific policy or practice disparately affecting the group.

See Brown v. Social Security Administration, EEOC Request No. 05980875

(November 4, 1999).

In Crandall, supra, the Commission held that the claim of one unit of

nurses receiving more favorable treatment than another was a generalized

grievance that failed to state a claim. The Commission noted, however,

that to the extent the claimant alleged that her pay should have been

adjusted along with the nurses in other units, she stated a cognizable

claim of personal harm. See Crandall, supra.

In another complaint concerning a �pay package,� the claimant stated

a claim when alleging that she, along with other members of her group,

did not receive a $500 award because of their sex. See Passey v. United

States Postal Service, EEOC Appeal No. 01984974 (February 28, 2000).

This matter stated a claim, because it involved more than a generalized

grievance -- complainant alleged a specific harm with regard to the

award money. See id.

In the present case, complainant identified a specific policy -- the

new pay system. To the extent that complainant alleges that the pay

system was discriminatory, without regard to his individualized harm,

he has failed to state a claim. But he also alleged a personal injury

beyond a general grievance - receiving a smaller pay increase than he

was entitled. Assuming the claim to be true, and viewing it in a light

most favorable to complainant, he has stated a claim.<2>

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the claim, as

defined above, is REMANDED for further investigation.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

May 23, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 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.

2Whether the new pay system was developed on non-discriminatory

principles improperly addresses the merits of the claim prior to the

formal investigation. See Osborne v. Department of the Treasury, EEOC

Request No. 05960111 (July 19, 1996).