Daisy C. Character, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01a01787 (E.E.O.C. May. 26, 2000)

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.