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