01992375_r
11-08-1999
Linda C. Rogers, Appellant, v. Ann W. Brown, Chairman, Consumer Product Safety Commission, Agency.
Linda C. Rogers, )
Appellant, )
)
v. ) Appeal No. 01992375
)
Ann W. Brown, )
Chairman, )
Consumer Product Safety )
Commission, )
Agency. )
)
DECISION
Upon review, we find that certain allegations of appellant's complaint
were properly dismissed pursuant to 29 C.F.R. �1614.107(a), on the grounds
of failure to state a claim, and the remaining portion of the complaint
was properly dismissed pursuant to 29 C.F.R. �1614.107(b), on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
Appellant alleged that the agency discriminated against minorities when
on August 16, 1998, the agency hired a white individual for the position
of Investigator/Compliance Officer, GS-1801-12, in the Atlanta Office.
Appellant did not apply for this position. Appellant also alleged
that there is disparate treatment with regard to job assignments and
performance appraisals. We find that these allegations are generalized
grievances and, therefore, fail to state a claim. Appellant failed
to identify a specific harm which she, herself sustained beyond
that sustained by all other minorities. Appellant cannot pursue
a generalized grievance that members of one protected group are
afforded benefits not offered to other protected groups, unless she
further alleges some specific injury to her as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (allegation 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 29, 1997) (allegation 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 coworkers and therefore failed to
state a claim). Accordingly, the final agency decision dismissing these
allegations of appellant's complaint on the grounds of failure to state
a claim was proper and is hereby AFFIRMED.
Appellant also alleged that there was a discriminatory practice of
not selecting non-minorities for Compliance Officer positions in the
Atlanta Office in 1982 and in July 1997. Appellant initiated contact
with an EEO Counselor on September 18, 1998, after the expiration of
the applicable limitation period.<1> Appellant failed to act with
due diligence or prudent regard for her rights. O'Dell v. Department
of Health and Human Services, EEOC Request No. 05901130 (December 27,
1990); Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam). Appellant has not submitted adequate justification for
an extension of the applicable limitation period for contacting an EEO
Counselor. Accordingly, the agency's dismissal of this allegation of
appellant's complaint on the grounds of untimely EEO contact was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 EEOC Regulation 29
C.F.R. �1613.214(a)(1)(i) required that complaints of
discrimination be brought to the attention of the Equal
Employment Opportunity Counselor within thirty (30) calendar
days of an alleged discriminatory event, the effective date of
an alleged discriminatory personnel action, or the date that the
aggrieved person knew or reasonably should have known of the
discriminatory event or personnel action. EEOC Regulation 29
C.F.R. �1614.105(a)(1) extended the time limit for contacting an
EEO Counselor to forty-five (45) days for actions occurring on or
after October 1, 1992, the effective date of the new regulations.