01985893
03-31-2000
Charles Medlicott, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Charles Medlicott v. Department of Transportation
01985893
March 31, 2000
Charles Medlicott, )
Complainant, )
)
v. ) Appeal No. 01985893
Rodney E. Slater, ) Agency No. DOT-6-97-6028
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On July 24, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 22, 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. <1> In his complaint, complainant alleged
that he was subjected to discrimination on the bases of sex (male)
and in reprisal for prior EEO activity when:
Complainant was denied assistance by the Work Life Staff regarding
the release of records, and
Complainant's Freedom of Information Act (FOIA) request was not
acted upon.
The agency dismissed complainant's complaint on the grounds that it states
the same claim that is pending before or has been decided by the agency.
Specifically, the agency claimed that it responded to complainant's FOIA
request and that therefore complainant cannot raise the same issue in an
EEO complaint. In addition, the agency dismissed complainant's complaint
on the grounds of untimely EEO Counselor contact. The agency noted that
complainant first requested Work Life assistance in June 17, 1996, but did
not contact an EEO Counselor until October 4, 1996, beyond the applicable
forty-five (45) day limitations period for timely counselor contact.
On appeal, complainant argues that he has never received a full response
or disclosure for any FOIA request he has filed. In addition, complainant
states that he did not contact an EEO Counselor regarding his attempt to
get help from the Work Life staff. Instead, he claims he contacted the
counselor as a result of a September 24, 1996 court appearance in which
the Alaska District Attorney presented documents provided by the agency
concerning complainant. Thus, complainant contends that he contacted
an counselor regarding the agency's release of illegally kept records
and was therefore timely.
The Commission has held that it does not have jurisdiction over
the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
his or her FOIA requests under the appropriate FOIA regulations. Gaines
v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997).
In the instant case, therefore, complainant's allegation that the agency
improperly handled his FOIA request fails to state a claim within the
purview of the EEOC regulations at 29 C.F.R. � 1614.
Similarly, the Commission has held that jurisdiction over alleged
violations of the Privacy Act rests exclusively with the ed 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 complainant's CA-1 form and coworker discussed its contents
with other employees failed to state a claim because allegations 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 complaint 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 the agency's
release of illegally obtained information, a Privacy Act violation,
is not within the purview of the EEO process.
Accordingly, the agency's decision to dismiss complainant's complaint
is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
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:
March 31, 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 Assistant
1On 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.