01990773
09-07-1999
Stephanie Nixon, Appellant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.
Stephanie Nixon v. Federal Emergency Management Agency
01990773
September 7, 1999
Stephanie Nixon, )
Appellant, )
)
v. ) Appeal No. 01990773
) Agency No. 98-018
James Lee Witt, )
Director, )
Federal Emergency Management )
Agency, )
Agency. )
______________________________)
DECISION
On November 5, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated October 2, 1998, pertaining
to her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq. In her complaint, appellant alleged that she was subjected to
discrimination on the bases of race (African-American) and sex (female)
when:
On December 10, 1997, appellant was subjected to highly offensive and
explicit racial and sexual material (via video) while carrying out
duties associated with her employment;
Appellant was subjected to a video that depicted graphic scenes of
lynching African-Americans, the KKK, the use of offensive racial slurs,
acts of rape, sodomy and murder committed by an all Caucasian cast
and scenes of frequent urination and profanity (by a participant on
the bus, who was the author of the video), and was totally humiliated,
embarrassed, and hurt by the displays of laughter of various colleagues
during the video presentation. Appellant was the only African-American
present, and one of only two females present;
Appellant's request for the agency to obtain a copy of the offensive
video for review was denied;
The agency failed to take sufficient action against the responsible
contractor/company; and
The agency is in violation of its own affirmative action policies
regarding hiring and placement of women and minorities, and the agency's
non-compliance aggravated the abuse appellant suffered.
The agency accepted allegations (1) - (4), but dismissed allegation (5)
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for failure to raise
the allegation with her EEO Counselor.
On appeal, appellant argues, through her attorney, that she discussed
the environment and practices at the agency which resulted in appellant
being the only minority and one of only two females on board the bus.
Appellant also argues that the allegation is like or related to matters
discussed with appellant's EEO Counselor.
Although the agency dismissed allegation (5) for failure to raise the
matter with a counselor, the Commission finds that the allegation is
more properly analyzed for whether it states a claim. The Commission
finds that allegation (5) is a generalized grievance and, therefore,
fails to state a claim. Appellant failed to identify a specific harm
which she sustained. 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 (Sept. 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 (Aug. 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 co-workers and
therefore failed to state a claim).
CONCLUSION
Accordingly, the agency's dismissal of allegation (5) is AFFIRMED for
the reasons set forth herein.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Sept. 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations