01a01787
05-26-2000
Daisy C. Character, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Daisy C. Character v. Department of the Army
01A01787
May 26, 2000
Daisy C. Character, )
Complainant, )
)
v. ) Appeal No. 01A01787
Louis Caldera, ) Agency No. DBYOFO9804I0410
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated November 5, 1999 dismissing her 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 her complaint,
complainant alleged that she was subjected to discrimination on the
basis of reprisal for prior EEO activity when:
On March 4, 1998, complainant inferred that she had been investigated
and thus, her privacy invaded, and
On March 18, 1998, complainant was harassed when she was the subject
of a written derogatory and inaccurate statement.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)), for failure to
state a claim.
With regard to claim (1), we find that complainant failed to state a
claim. 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 complaint'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 complainant 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.
With regard to claim (2), we find that complainant failed to state a
claim of harassment. In the present case, complainant alleged that she
was subject to harassment when on March 18, 1998, a co-worker wrote a
derogatory statement against complainant. Complainant has not alleged
a personal loss or harm to a condition of employment. In addition, we
note that the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No.05940695 (February 9, 1995). Thus, we find
that complainant has failed to state a cognizable claim of harassment.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 26, 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
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.