01990567
12-21-2000
Verdon D. Beck, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Verdon D. Beck v. Department of the Army
01990567
December 21, 2000
.
Verdon D. Beck,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01990567
Agency No. BXJCFO9808I0680
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated September 30, 1998, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
disability, and in reprisal for prior EEO activity when:
Complainant was detailed to a position that removed him from his major
duties and responsibilities from March 9, 1998, through July 7, 1998, as
a Management and Program Analyst, GS-0343-11, 7th ARCOM, in Heidelberg,
Germany, and
Complainant's landlord informed him on July 24, 1998, that the Operation
Branch Chief of 7th ARCOM had released personal information to him about
complainant.
The agency dismissed issue (1) pursuant to the regulation set forth
at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The agency noted that the earliest incident of alleged discrimination
occurred on March 9, 1998, however, complainant did not initiate contact
with an EEO Counselor until June 19, 1998. The agency stated that the
loss of supervisory responsibilities in March 1998, was a significant
personnel action which should have triggered complainant's duty to
timely contact an EEO Counselor. The agency dismissed issue (2) of
complainant's complaint pursuant to the regulation set forth at 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically,
the agency found that complainant failed to allege a loss or harm to a
term, condition, or privilege of employment.
On appeal, with regard to the agency's dismissal of issue (2) for failure
to state a claim, complainant states that the July 24, 1998 statements
constituted a violation of the Privacy Act.
According to the formal complaint and the EEO Counselor's report,
complainant claimed that his supervisor released private financial
information to his landlord which caused the landlord to change the locks
and resulted in complainant being locked out of his place of dwelling.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
With regard to issue (1), the alleged discriminatory incident occurred on
March 9, 1998, when complainant was detailed to a position that removed
him from his major duties and responsibilities. Complainant should
have reasonably suspected discrimination when he was detailed on March
9, 1998. Thus, complainant's June 19, 1998 Counselor contact was beyond
the applicable 45-day limitation period.
The regulation set forth at 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).
With regard to issue (2), we find that the agency properly dismissed this
issue for failure to state a claim. In his formal complaint, complainant
alleges that his supervisor released private financial information
without authorization to his landlord. According to complainant, the
supervisor's actions were a violation of the Privacy Act. 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). We find that issue (2) fails to state a claim.
Finally, we note that on appeal, complainant attaches a copy of a
July 1995 settlement agreement concerning a previous EEO complaint and
references a "breach of settlement." If complainant wishes to pursue
a breach of settlement claim, then he must raise such a claim with
the agency's EEO Director pursuant to the regulation set forth at 29
C.F.R. � 1614.504(a).
Accordingly, the agency's dismissal of issues (1) and (2) was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2000
__________________
Date