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.