01a02618
07-13-2000
Hyong Pin Chu, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hyong Pin Chu v. United States Postal Service
01A02618
July 13, 2000
Hyong Pin Chu, )
Complainant, )
)
v. ) Appeal No. 01A02618
) Agency No. 1E-853-0003-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated January 14, 2000, 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>
The agency characterized complainant's complaint as alleging that she
was subjected to discrimination in reprisal for prior EEO activity when
she was informed that medical information from her Form CA-2, Notice of
Occupational Disease and Claim for Compensation, was shared with other
supervisors in violation of her privacy rights.
Pursuant to EEOC Regulations, the agency dismissed the complaint for
failure to state a claim. Specifically, the agency determined that
complainant failed to allege an unresolved personal injury as a result
of the alleged discriminatory act.
The record indicates that as part of her complaint, complainant
attached a July 30, 1999 letter to the agency Manager of EEO Complaints
Processing regarding �[m]y pending EEO/Sexual Harassment Complaint
(#1E-853-0048-99).� Complainant asked her to �consider this a formal
complaint of RETALIATION, HOSTILE ENVIRONMENT and a blatant Privacy Act
violation.� In another letter dated September 12, 1999, to the same
agency Manager of EEO Complaints Processing, complainant stated that as
the manager had asked her to include any acts of retaliation and a hostile
work environment as part of her ongoing EEO complaint instead of filing
separate formal complaints, she therefore considered her July 30, 1999
letter as a further claim of harassment and a hostile work environment
associated with her previous complaint. Complainant's letter, however,
also noted that her �CA-2" documents were protected under the Privacy
Act, and asked that the manager �[p]lease consider this another initial
request for counseling for the above-mentioned Privacy Act violation.�
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review of the record, we find that the agency has properly
dismissed complainant's complaint. Although complainant has here
alleged an incident that she apparently considered part of her complaint
of retaliatory harassment and hostile work environment in EEO case
#1E-853-0048-99, she has clearly stated that she regarded the instant
complaint as asserting a separate Privacy Act violation. The Privacy Act,
5 U.S.C. � 552(g)(1), provides an exclusive statutory framework governing
the disclosure of identifiable information contained in federal systems
of records. 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 complainant'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); 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). Therefore, the agency's decision to reject complainant's
claim concerning a violation of the Privacy Act for failure to state a
claim was proper.
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:
July 13, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.