01984273
06-15-1999
Dennis V. Cumbie, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Dennis V. Cumbie v. Department of Agriculture
01984273
June 15, 1999
Dennis V. Cumbie, )
Appellant, )
)
v. ) Appeal No. 01984273
) Agency No. 980361
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Upon review, the Commission finds that the agency properly dismissed
allegation (1) of appellant's complaint for failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a), and allegation (2) for raising a
proposal to take an action, pursuant to 29 C.F.R. �1614.107(e). In his
complaint, appellant alleged that he was discriminated against when (1)
his privacy rights were violated and his reputation was damaged when
in January 1994, an agency official stated to the Associated Press that
he had discriminated against a farm customer, and (2) he was threatened
with reprimand, demotion, and directed reassignment as a result of the
settlement of a discrimination filed against him in August 1991.
We find that allegation (1) fails to state a claim because appellant
has not established that he suffered personal harm with regard to a term,
condition, or privilege of his employment. Furthermore, 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 appellant'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
appellant 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). Accordingly, the agency's dismissal of allegation
(1) was proper and is hereby AFFIRMED.
With regard to allegation (2), we find that this allegation was properly
dismissed pursuant to 29 C.F.R. �1614.107(e) for alleging that a proposal
to take a personnel action was discriminatory. Accordingly, the final
agency decision dismissing allegation (2) is hereby 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 (S0993)
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. 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 (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:
June 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations