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.