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.