Stephanie Nixon, Appellant,v.James Lee Witt, Director, Federal Emergency Management Agency, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01990773 (E.E.O.C. Sep. 7, 1999)

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