Frances E. Tate, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01A00541 (E.E.O.C. Aug. 28, 2000)

01A00541

08-28-2000

Frances E. Tate, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Frances E. Tate v. Department of the Army

01A00541

April 19, 2001

.

Frances E. Tate,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A00541

Agency No. 9909j0710

DECISION

Complainant filed a timely appeal with this Commission in response to the

agency's Notice of Partial Dismissal dated October 6, 1999, dismissing

a portion of her 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. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

(Black) and sex (female) when:

1. Management failed to provide her an opportunity for promotion;

2. Previous license requirements in two GS-12 positions were removed

so that a particular individual could be eligible to compete for the

position;

3. Complainant was expected to perform extra duties without fair

compensation since her arrival;

4. Management failed to provide appropriate developmental opportunities

to ensure the fair and equitable treatment of Black females.

The agency dismissed claim (4) pursuant to EEOC Regulation 1614.107(a)(1),

for failing to state a claim.<1> Specifically, the agency found that

the record does not show that complainant requested and/or was denied

appropriate development training opportunities. Also, management stated

that establishment of an upward mobility plan for Black females only,

would be discriminatory to other employees and counter-productive to

good order and discipline. Management argues that complainant failed to

establish that Black females are treated different by than White females.

The agency stated that all employees are currently made aware of vacancies

and encouraged to apply for positions for which they are qualified.

The regulation set forth at 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 21, 1994).

Complainant argues that Black females in the Casualty and Memorial

Affairs Operations Center (CMAOC) are not given the same opportunities

for advancement as White females/males. Specifically, complainant argues

that there is no upward mobility for Black females within CMAOC and

they are not considered eligible for higher graded positions in CMAOC

when positions become available. Additionally, complainant argues that

management failed to develop individual development plans, which would

provide existing employees the opportunity and experience necessary to

qualify for positions with promotion potential within the directorate.

We find, that the Agency dismissal of claim (4) was proper. We found

that complainant's allegation that Black females in the Casualty and

Memorial Affairs Operations Center are not given the same opportunities

as White females were a generalized grievance, therefore she failed to

state a claim. Complainant failed to establish some specific injury as

a result of the alleged discriminatory practice. 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 claim

at issue does not render complainant an aggrieved employee.

Accordingly, the agency's partial dismissal was proper and is hereby

AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 Hadden, Director

Office of Federal Operations

April 19, 200

Date

______________

Date 1An investigation was conducted regarding claims (1), (2) and

(3), the Agency issued a Final Decision, on August 28, 2000. The Agency

found no discrimination and complainant did not file an appeal with the

Commission on those claims.