01A00897
04-28-2000
Phillip M. Bovinnette, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Phillip M. Bovinnette v. Department of Transportation
01A00897
April 28, 2000
Phillip M. Bovinnette, )
Complainant, )
)
v. ) Appeal No. 01A00897
) Agency No. DOT 3-99-3118
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1>
In his formal complaint, complainant, an Operations Supervisor,
stated that the agency implemented an Air Traffic Control Pay Plan on
October 1, 1998. Complainant claimed that the results of the pay plan
reflected an unequal distribution among "MSS-02" employees. Specifically,
complainant claimed that less senior MSS-02 Supervisors received more of
a percentage than the more senior MSS-02 Supervisors, such as himself.
Complainant claimed that the new pay system in effect gave higher pay
increases to younger air traffic controllers than to more senior air
traffic controllers, and especially those over the age of forty; and
that as a consequence, the agency's newly implemented pay scale served
to discriminate against him because of his age.
Upon review, we find that complainant's complaint is a generalized
complaint regarding an agency wide-pay structure which he believes
discriminates against him because of his age. The Commission determines
that as a generalized grievance, complainant's complaint fails to
state a claim. Complainant failed to identify a specific harm that
he sustained. 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). On appeal, no persuasive arguments
or evidence have been presented regarding whether complainant has stated
a claim, i.e., to show that complainant was specifically aggrieved by
the complaint allegations. Accordingly, the agency's final decision
dismissing complainant's complaint is 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:
April 28, 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.