01982776_r
03-19-1999
Isidor Meza, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Isidor Meza, Jr., )
Appellant, )
)
v. ) Appeal No. 01982776
) Agency No. 4-G-770-0643-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning 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 Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., and
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The final agency decision was dated January 27, 1998, and received by
appellant January 28, 1998. The appeal was postmarked February 25, 1998.
Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record indicates that on July 23, 1997, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to resolve
his concerns were unsuccessful. On September 2, 1997, appellant filed a
formal complaint, alleging that he was the victim of unlawful employment
discrimination on the bases of race (Caucasian), color (brown), national
origin (Hispanic), age (47), physical disability (back/spine injuries),
and mental disability (post traumatic stress disorder) when:
On July 14, 1997, the area manager violated the Privacy Act by disclosing
appellant's physical impairment in a memorandum forwarded to other
managers;
Appellant's request for a transfer was denied; and
The station manager made improper comments about appellant on appellant's
Injury Compensation Claim.
On January 28, 1998, the agency issued a final decision dismissing
allegation (1) of appellant's complaint for failure to state a claim.
Specifically, the agency found that Privacy Act violations are not
justiciable through the EEO process, and alternatively that appellant was
not an �aggrieved employee� because he had not suffered harm to a term,
condition or privilege of employment.
The agency also dismissed allegations (2) and (3) because the allegations
were pending before the agency in another complaint, agency number
4-G-770-0645-97. In agency number 4-G-770-0645-97, appellant alleged that
he was subjected to discrimination when, inter alia, on April 18, 22,
and 30, and June 9, 1997, appellant's requests for transfer were either
ignored or denied; and on April 14, 1997, appellant's supervisor sent
a memo to Injury Compensation to add that he rode a wagon in a rodeo,
which violated the Privacy Act.<1>
On appeal, appellant claims that his Area Manager submitted misleading
statements regarding his February 1997 personal leave on appellant's
claim for Workers Compensation for injuries received in a March 25,
1997 incident. Appellant states that this action, along with several
other memos allegedly sent by the Area Manager to the Workers Compensation
office, is a discriminatory attempt to block his claim. Appellant also
takes issue with the denial of his injury claims by the Department
of Labor.
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).
The Commission has consistently held that an alleged violation of
the Privacy Act is outside the purview of the EEO process. See Valle
v. United States Postal Service, EEOC Request No. 05960585 (Sept. 6,
1997) (citing Osborne v. United States Postal Service, EEOC Request
No. 05950654 (Feb. 15, 1996)); Bucci v. Department of Education, EEOC
Request No. 05890289 (Apr. 12, 1989). When an employee believes that
an agency has violated his rights under the Privacy Act, the proper
remedy is provided under that legislation. See Moore v. United States
Postal Service, EEOC Request No. 01943229 (October 27, 1994). Therefore,
the agency dismissal of allegation (1) was proper.
With regard to allegations (2) and (3), EEOC Regulation 29
C.F.R. �1614.107(a) provides that the agency shall dismiss a complaint
or a portion of a complaint that states the same claim that is pending
before, or has been decided by, the agency or Commission.
A review of the record reveals that appellant previously filed a
complaint, agency number 4-G-770-0645-97, alleging the same matters
as appellant alleges here in allegations (2) and (3). Therefore, the
agency's dismissal of allegations (2) and (3) was proper.
CONCLUSION
Accordingly, the decision of the agency to dismiss appellant's complaint
is 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. 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:
March 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Agency number 4-G-770-0645-97 was
consolidated with agency number 4-G-770-0644-97. The allegation
regarding denial of transfers was accepted for investigation,
and the allegation regarding a supervisor's comment to Injury
Compensation was dismissed. The dismissed allegation is currently
on appeal to the Commission. EEOC Appeal No. 01984501.