Charles J. Jenkins, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 13, 1999
01991383 (E.E.O.C. Oct. 13, 1999)

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