Andre Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 14, 2000
01991505 (E.E.O.C. Feb. 14, 2000)

01991505

02-14-2000

Andre Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Andre Smith, )

Complainant, )

)

v. ) Appeal No. 01991505

William J. Henderson, ) Agency No. 1-G-781-0025-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On December 1, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

November 23, 1998, pertaining to his 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. , the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. , and

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq. <1> In his complaint, complainant alleged that he was subjected

to discrimination on the bases of race (Black), color (black), sex (male),

national origin (African-American), age (41), physical disability (hearing

and speech impairment), and in retaliation for prior EEO activity when:

On January 14, 1998, complainant's supervisor violated complainant's

privacy when the supervisor announced to all employees during a safety

meeting that complainant was suspended for thirty days.

The agency dismissed complainant's complaint for failure to state a claim.

Specifically, the agency found that complainant's allegation of a Privacy

Act violation does not fall within the purview of Title VII.<2>

On appeal, complainant claims that he was harmed by his supervisor's

public disclosure of his suspension since he is now subjected to

slanderous statements about his work habits and ethics. Complainant also

claims that his reputation was destroyed by his supervisor's disclosure.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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 22,

1994).

In the present case, complainant claimed that he suffered a harm to a

condition of his employment when his supervisor violated his privacy

rights and disclosed his thirty day suspension to other employees

during a safety meeting. We note that as the issue of complainant's

actual suspension is being addressed in a separate complaint, Agency

No. 1-G-781-0022-98, the sole issue raised in this complaint is the public

disclosure of complainant's suspension. The Commission has held that

jurisdiction over alleged violations of the Privacy Act rests exclusively

with United States District Courts. See Story v. USPS, EEOC Appeal

No. 01953767 (October 18, 1995); Concon v. USPS, EEOC Appeal No. 01965280

(May 14, 1997)(allegation that Privacy Act violated when a supervisor

allegedly allowed a coworker to read appellant's CA-1 form and coworker

discussed its contents with other employees failed to state a claim

because allegation of a Privacy Act violation is not within the purview

of the EEO process); Ogden v. USPS, EEOC Appeal No. 01965916 (July 17,

1997)(allegation that an agency official's letter to DOL's OWCP divulged

private matters and contained an accusation of perjury regarding appellant

and was false and misleading and that the information was considered by

the DOL's OWCP was an impermissible collateral attack on the manner in

which the agency represented itself in the DOL's OWCP forum). See also

Bucci v. Department of Education, EEOC Request No. 05890289 (April 12,

1989)(alleged violation of the Privacy Act is outside the purview of the

EEO process): Osborn v. USPS, EEOC Request No. 05950654 (February 15,

1996). Consequently, the Commission finds that complainant's allegation

regarding a Privacy Act violation is not within the purview of the

EEO process. Accordingly, we find that the agency properly dismissed

complainant's complaint and AFFIRM the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 14, 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 Equal Employment Assistant1On 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.

2The final agency decision noted that complainant's allegation

concerning his suspension is addressed in a separate complaint, Agency

No. 1-G-781-0022-98.