01a60495
04-27-2006
Walter W. Lancaster III, Complainant, v. Bruce R. James, Public Printer, United States Government Printing Office, Agency.
Walter W. Lancaster III,
Complainant,
v.
Bruce R. James,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 01A60495
Agency No. 0519
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint. On June 14, 2005, complainant filed a complaint
alleging that he was discriminated against on the bases of race (Black),
color (light skin), sex (male), and reprisal (prior EEO activity) when
on:
1) March 3, 2005, he was assigned new duties, which changed his job
classification; and
2) March 7, 2005, he learned that he was not allowed in the Public
Printer's office.
The agency dismissed both claims on the grounds that complainant failed
to state a claim. This appeal followed.
Claim (1):
EEOC Regulation 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).
According to complainant, he was, because of his race, color, sex and
prior EEO activity, assigned the additional duty of signing receipts,
which he believed changed his job classification and entitled him
to additional compensation. The agency argued that complainant was
not aggrieved because the additional responsibility was required of
all Forklift Operators, not just complainant. Furthermore, the agency
indicated that, prior to implementation, the additional duty requirement
was reviewed by the Human Capital Office and that a determination was made
that grade increases or reclassifications were not warranted. Finally,
the agency indicated that the Union did not object to the change.
After a careful review of the record, we find that the matter raised in
the instant complaint constitute a generalized grievance that affects all
Forklift Operators, not just complainant. Therefore, he fails to state
a claim. Complainant essentially argues that Forklift Operators are
being asked to perform duties that are outside of their job descriptions
and that they are not being compensated for this additional work.
Complainant cannot use the EEO process to pursue a generalized grievance,
unless he further alleges some specific injury to himself 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 Blacks against Hispanics,
in development and promotion opportunities was a generalized grievance
shared by all Hispanic co-workers and therefore failed to state a claim.)
Accordingly, the agency's dismissal of claim (1) is affirmed.
Claim (2):
Complainant maintained that because of a letter he wrote concerning
the assignment of the additional duty reference above, he was told that
he was no longer allowed access to the Public Printers Office where he
engaged in volunteer work related to Tsunami relief efforts. We affirm
the dismissal of claim (2) on the grounds that complainant failed to
state a claim. The question as to whether a complainant is allegedly
aggrieved due to an unlawful employment practice for which there is
a remedy under the Federal equal employment statutes, of necessity,
requires a consideration of whether the complainant has alleged unlawful
discrimination regarding hiring, termination, compensation, or other
terms, conditions, or privileges of employment. Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Terms, conditions,
or privileges of employment include, inter alia, promotion, demotion,
discipline, reasonable accommodation, appraisals, awards, training,
benefits, assignments, overtime, leave, tours of duty, etc. Id. Here,
the record does not indicate that complainant suffered a harm or loss
with respect to a term, condition, or privilege of his employment for
which there is a remedy. Accordingly, the agency's dismissal of claim
(2) is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____04-27-06______________
Date
2
01A60495
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A60495