0120100181
03-22-2011
Darrell Patterson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Darrell Patterson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120100181
Agency No. 4G-770-0234-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 10, 2009, dismissing his formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to for failure to state a claim.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor at the Agency's Nederland Post Office facility in Nederland, Texas. On August 20, 2009, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), religion (not specified), and age (53) when:
On April 30, 2009, Complainant became aware that his supervisor "violated the Privacy Act"1 by leaving on the workroom floor a printed copy of an email that contained his medical information.2
The Agency dismissed the complaint for failure to state a claim. That instant appeal followed.
CONTENTIONS ON APPEAL
Complainant objects to the Agency's dismissal of his formal complaint because it was done "without a complete and thorough investigation." Further, Complainant, for the first time, raises a cursory argument that the EEO Counselor failed to comply with EEO regulations when, during mediation, he failed to intervene when Complainant's supervisor allegedly threatened her with illegal activity.
The Agency responds that it properly dismissed the complaint.
ANALYSIS AND FINDINGS
The Commission finds Complainant's allegation that the Agency violated the Privacy Act, 5 U.S.C. � 552(f)(1), fails to state a claim. The EEO administrative process is not the proper forum for Complainant's allegation. The Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the Privacy Act. See Bucci v. Dep't of Educ., EEOC Request Nos. 05890289, 05890291 (April 12, 1989).
To the extent Complainant alleges misconduct by the EEO Counselor, we note that Complainant did not raise this allegation in his formal complaint or at any time during pre-complaint counseling. Therefore, we decline to address the matter on appeal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision to dismiss the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 22, 2011
__________________
Date
1 We note that Complainant did not allege a violation of the Rehabilitation Act.
2 During pre-complaint counseling, Complainant raised an allegation of discrimination when he was issued a letter of warning (LOW). However, in his report, the EEO Counselor notes that Complainant informed the counselor that the LOW was settled and no longer an issue. Complainant did not raise the LOW in his formal complaint or on appeal. Therefore, we decline to further address the matter.
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0120100181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100181