01991383
10-13-1999
Charles J. Jenkins, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles J. Jenkins v. United States Postal Service
01991383
October 13, 1999
Charles J. Jenkins, )
Appellant, )
) Appeal No. 01991383
v. ) Agency No. 4-G-700-0162-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from an agency decision
concerning 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., and � 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. The FAD was dated October 28, 1998,
and received by appellant on October 31, 1998. The appeal was postmarked
on November 30, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �
1614.402(a)), and is accepted in accordance with EEOC Order No. 960.001,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly defined the scope of
investigation based upon appellant's complaint.
BACKGROUND
Appellant filed a formal complaint on June 22, 1998, alleging
discrimination on the bases of race (Negroid), physical disability
(on-the-job knee and back injury and diabetes), mental disability
(emotional stress), and reprisal when on January 27, 1998, two agency
officials went to appellant's home without notice and harassed appellant
as part of the agency's Home Visit Program.
On September 22, 1998, the agency accepted the complaint and defined
the scope of investigation but neglected to include the knee injury as a
portion of appellant's complaint. The agency also asked that if appellant
disagreed with the issue as defined by the agency, that appellant should
write his objections within seven (7) days of receiving this notice.
On October 2, 1998, appellant wrote to the agency seeking to add to the
scope of investigation the following:
Appellant's physician was contacted by the agency in order to retrieve
his medical record.
The agency failed to include knee injury as part of appellant's
disability.
Appellant was denied due process when the agency failed to recognize
the aggrieved class action complaint.
Whether the implementation of the Home Visit Program comported with
guidelines as stated within the Privacy Act or procedures required by
Federal Law.
Appellant has not been provided the booklet, What You Need to Know About
EEO.
On October 28, 1998, the agency issued a decision to include appellant's
on-the-job knee injury as part of appellant's bases of discrimination.
The agency declined to include any other allegations raised by appellant
in his letter dated October 2, 1998. In its FAD, the agency found
allegation (4) to be outside the purview of Title VII. Further,
the agency instructed appellant to contact the EEO Office regarding
allegations (1), (3), and (5). The agency gave appellant the right
to appeal its scope of investigation to the Commission. This appeal
followed.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the agency, in its FAD dated
October 28, 1998, properly defined appellant's allegation based upon
his complaint filed on June 22, 1998. The agency corrected issue (2) by
including appellant's knee injury as a part of his bases of discrimination
in the scope of investigation. Further, we find that issues (1) and
(3)-(5) were not brought to the attention of an EEO Counselor. Therefore,
they should be included within the scope of the investigation if they are
"like or related" to the matter that has been brought to the attention
of the EEO Counselor.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
As to issues (1), (3), and (5), the Commission finds that they are not
"like or related" to the original complaint nor do they add to, clarify,
or reasonably been expected to grow out of the original complaint.
Therefore, we find that the agency properly excluded these issues from
the scope of investigation.
As to issue (4), it appears that this allegation is "like or related"
to appellant's complaint. In issue (4), appellant questions whether
the Home Visit Program was conducted within the boundaries of federal
law and in particular the Privacy Act. The Commission finds that
appellant's allegation of a violation of the Privacy Act is not within
the purview of any law enforced by the Commission. We have examined the
Privacy Act and have held that this law provides an exclusive statutory
framework governing the disclosure of identifiable information contained
in federal systems of records, and rests in the exclusive jurisdiction of
United States District Courts. See Bucci v. Department of Education, EEOC
Request Nos. 05980289, 05890290, 05890291 (April 12, 1998). Accordingly,
the Commission determines that appellant's Privacy Act allegation is
outside the purview of the EEO process and the Home Visit Program will
be investigated as part of appellant's complaint as defined by the scope
of investigation.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
October 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations