Joseph C. Hart, Complainant,v.Rodney E. Slater, Secretary, Department of the Transportation, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01a03035 (E.E.O.C. Jul. 20, 2000)

01a03035

07-20-2000

Joseph C. Hart, Complainant, v. Rodney E. Slater, Secretary, Department of the Transportation, Agency.


Joseph C. Hart v. Department of Transportation

01A03035

July 20, 2000

.

Joseph C. Hart,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of the Transportation,

Agency.

Appeal No. 01A03035

Agency No. 2-00-2028

DECISION

Complainant filed an appeal with this Commission from an agency's decision

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).

On July 13, 1999, complainant contacted the EEO office regarding claims of

discrimination based on age. Informal efforts to resolve complainant's

concerns were unsuccessful. On October 29, 1999, complainant filed

a formal complaint. In its decision, the agency framed the claim as

follows:

Whether complainant was subjected to disparate treatment when he was

excluded from the new Air Traffic Compensation Pay plan for Managers,

Supervisors, and Staff (MSS) that was given to all field personnel in

FG-2152 job series.

It is decision, issued on February 7, 2000, the agency dismissed the

complaint for failure to state a claim. The agency determined that

complainant failed to allege a personal harm or loss regarding a term,

condition or privilege of his employment. Further, the agency found

that the alleged incident occurred on May 25, 1999, but that complainant

did not contact an EEO Counselor until July 13, 1999. Therefore, the

complainant was also dismissed for untimely Counselor contact.

Complainant presents no new contentions on appeal.

The regulation set forth at 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 21, 1994).

Here, complainant claimed that he requested a job transfer to ATO-200,

which was granted on January 17, 1999. As an operational 2152,

complainant sstated he received �the operational differential and

retroactive other pay.� Complainant further stated that in pay period 12,

however, he noticed that these were not reflected on his pay statement.

Upon inquiry, complainant learned about the Movement Rules which were

implemented on May 25, 1999 and �affected all employees retroactively

to October 1, 1998.� On appeal, complainant has provided copies of the

Movement Rules memo, as well as correspondence regarding overpayment

collection. Further, the record contains a September 17, 1999 letter

notifying complainant that was overpaid.

The Commission finds that complainant's complaint is a generalized

grievance and, therefore, fails to state a claim. Complainant cannot

pursue a generalized grievance that members of one protected group

are afforded benefits not offered to other protected groups, unless

he further alleges some specific injury to him as a result of the

alleged discriminatory practice. See Warth v. Seldin, 422 U.S. 490,

499 (1975); 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). Although complainant contends that he has lost pay,

he has failed to identify a specific harm which he sustained beyond

that sustained by all other employees affected by the Movement Rules.

Therefore, we find that the agency properly dismissed the complaint for

failure to state a claim.

Because of our disposition we do not consider whether the complaint was

properly dismissed on other grounds.

Accordingly, the agency's decision dismissing the complaint was proper

and is hereby AFFIRMED.

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:

July 20, 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.