0120092835
03-30-2011
Dorothy J. Johnson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention) Agency.
Dorothy J. Johnson,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention)
Agency.
Appeal No. 0120092835
Agency No. HHS-CDC-0098-2009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 15, 2009, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Budget Analyst at the Agency's facility in Chamblee, Georgia.
The record indicated that on November 9, 2008, Complainant learned
that a Contract Employee (White) was hired as a Financial Management
Specialist at the GS-12, Step 10 level. Complainant believed that
this was discriminatory for most other employees were hired at the Step
1 level. On December 12, 2008, Complainant contacted an EEO Counselor.
When the matter could not be resolved informally, on March 31, 2009,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of race (Black/African-American)
when, on November 9, 2008, the Contract Employee was hired at the GS-12,
Step 10, while Black employees' requests to enter employment at a higher
level were denied by management.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Agency noted that Complainant did not
apply for the position at hand. The Agency determined that Complainant's
complaint constituted a "general grievance" that members of her protected
group were not afforded benefits provided to other groups. Further, the
Agency indicated that Complainant had not shown how she was personally
harmed by the hiring of the Contract Employee. As such, the Agency
concluded that Complainant did not have standing to raise her claim
of discrimination. Accordingly, the Agency dismissed the matter.
Complainant appealed the dismissal without comment. The Agency requested
that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 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. Dep't of the Air Force, EEOC Request No. 05931049
(Apr. 21, 1994).
Upon review, we find that Complainant has alleged discrimination occurs in
the Agency's hiring practices regarding Black/African-American employees.
In support of her claim of discrimination, Complainant pointed to
the Agency's hiring of the Contract Employee, who is outside of her
protected group, on November 9, 2008, at the GS-12, Step 10 level with a
hiring bonus of 15%. Complainant indicated that Black/African-American
employees who made similar requests to be hired at a higher level were
denied such requests by the Agency.
The Commission finds such a complaint constitutes a generalized grievance
and, therefore, fails to state a claim. Complainant failed to identify
a specific harm that she personally sustained. Complainant 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 him as a result of the
alleged discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499
(1975); Crandall v. Dep't of Veterans Affairs, EEOC Request No. 05970508
(Sept. 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. Dep't of the Treasury, EEOC Appeal
No. 01970736 (Aug. 28, 1997). Therefore, we determine that the Agency's
dismissal of the complaint was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 30, 2011
__________________
Date
2
0120092835
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092835