Charles Medlicott, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01985893 (E.E.O.C. Mar. 31, 2000)

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.