Samuel Hume, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 7, 1999
01985022_r (E.E.O.C. Sep. 7, 1999)

01985022_r

09-07-1999

Samuel Hume, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Samuel Hume, )

Appellant, )

)

v. ) Appeal No. 01985022

) Agency No. BGANFO9802I0150

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DECISION

On June 10, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated May 13, 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.

The Commission accepts appellant's appeal in accordance with EEOC Order

No. 960, as amended.

In his complaint, appellant alleged that he was subjected to

discrimination on the bases of race (black) and in reprisal for prior

EEO activity when:

On February 6, 1998, appellant called the Director of Nutrition Care,

who violated appellant's privacy right by returning appellant's call

on a speaker phone with someone else in his office;

On February 13, 1998, appellant received a letter that instructed him

not to enter the work site and placed appellant on non-duty pay status

for allegedly threatening conduct toward supervisory personnel; and

On November 27, 1997, appellant received a notice of leave warning.

The agency accepted allegation 2 for investigation. The agency dismissed

allegation 1 for failure to state a claim, and dismissed allegation 3 for

untimely EEO contact. Specifically, the agency noted that allegation 1

does not allege any actual harm to appellant and that "a violation of the

privacy act does not fall within the purview of the EEOC regulations."

Concerning allegation 3, the agency found that appellant sought EEO

counseling on February 13, 1998, for an alleged discriminatory action

which occurred on November 27, 1997.

In response to appellant's appeal, the agency that appellant has filed

prior EEO complaints and should therefore be versed in the applicable

45-day limitation. Furthermore, the agency notes that appellant's

allegations would not constitute a continuing violation because appellant

has not demonstrated a series of related acts, one or more which falls

within the limitations period, or the maintenance of a discriminatory

system both before and during the limitation period.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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).

In allegation 1, appellant alleged that his right to privacy was violated

when his telephone call was placed on speaker phone. 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). Thus, the agency's dismissal of allegation 1

was proper.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that support a charge of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

As to allegation 3, the record reflects that appellant clearly sought

counseling beyond the 45-day period. Appellant has not contested on

appeal or asserted any reason why waiver of the 45-day limitation is

warranted in this case. Accordingly, the agency's decision to dismiss

allegation 3 is appropriate.

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of allegations 1 and 3.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

Sept. 7, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations