James S. Branscomb, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A24936_r (E.E.O.C. Oct. 14, 2003)

01A24936_r

10-14-2003

James S. Branscomb, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


James S. Branscomb v. Department of the Navy

01A24936

October 14, 2003

.

James S. Branscomb,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A24936

Agency No. 0267004005

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 19, 2002, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

On May 3, 2002, complainant contacted the EEO office, alleging that he was

subjected to discrimination on the basis of disability. Informal efforts

to resolve complainant's concerns were unsuccessful. On June 4, 2002,

complainant filed the instant formal complaint.

In its final decision, dated June 19, 2002, the agency determined that

complainant's complaint was comprised of one claim, that was identified

as follows:

The complainant alleges he was discriminated against because of his

disability when his supervisor failed to timely respond to a report of

accident and when management requested medical documentation.

The agency dismissed the instant complaint on the grounds of untimely

EEO Counselor contact, finding that the alleged discriminatory incident

occurred in September 29, 2001, but that complainant did not contact an

EEO Counselor until May 3, 2002.

The Commission determines that the agency improperly characterized the

instant complaint as being comprised solely of one matter as identified

above. A fair reading of the complaint reveals that complainant expressly

raised five claims, that he identified in the following fashion:

1) on September 29, 2003, his supervisor failed to take immediate

action after complainant notified him that he was injured, i.e., the

supervisor failed to timely provide him with a copy of a CA1 form and

gave him inadequate instruction regarding its completion;

2) his supervisor improperly delayed the submission of his workers'

compensation claim;

3) his supervisor made false statements about his injury during the

workers' compensation processing;

4) management improperly participated in the workers' compensation

process; and

5) his medical records were copied and distributed within agency

management, and his personal and private confidential medical records

were discussed in meetings attended by four named agency officials.

The agency dismissed complainant's complaint for failure to contact an

EEO Counselor in a timely manner. However, the Commission determines

that the formal complaint, which we determine is comprised of the five

claims discussed above, is more properly analyzed in terms of whether

it states a claim. See 29 C.F.R. � 1614.107(a)(1).

Claims (1) - (4)

In claims 1 through 4, we find that complainant's claims relate to the

processing of his Workers' Compensation Programs (OWCP) claim following

a work related injury. We note that in his complaint, complainant

cited various OWCP's regulations that were violated as a consequence of

the agency's actions. Consequently, these matters are properly raised

before the Department of Labor, and not in the EEO forum. Accordingly,

we find that claims (1) - (4) fail to state a claim.

Claim (5)

In claim 5, complainant claimed that his personal confidential medical

records were discussed in agency meetings, which we determine is in

essence a claim that the agency violated provisions of the Privacy

Act. 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 and jurisdiction rests exclusively in the

United States District Courts for matters brought under the provisions

of the Privacy Act. Bucci v. Department of Education, EEOC Request

Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore, we find

that claim (5) fails to state a claim.

Accordingly, the agency's final decision dismissing the complaint is

AFFIRMED for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

October 14, 2003

__________________

Date