01985022_r
09-07-1999
Samuel Hume, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Samuel Hume, )
Appellant, )
)
v. ) Appeal No. 01985022
) Agency No. BGANFO9802I0150
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On June 10, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 13, 1998, pertaining to
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 Commission accepts appellant's appeal in accordance with EEOC Order
No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (black) and in reprisal for prior
EEO activity when:
On February 6, 1998, appellant called the Director of Nutrition Care,
who violated appellant's privacy right by returning appellant's call
on a speaker phone with someone else in his office;
On February 13, 1998, appellant received a letter that instructed him
not to enter the work site and placed appellant on non-duty pay status
for allegedly threatening conduct toward supervisory personnel; and
On November 27, 1997, appellant received a notice of leave warning.
The agency accepted allegation 2 for investigation. The agency dismissed
allegation 1 for failure to state a claim, and dismissed allegation 3 for
untimely EEO contact. Specifically, the agency noted that allegation 1
does not allege any actual harm to appellant and that "a violation of the
privacy act does not fall within the purview of the EEOC regulations."
Concerning allegation 3, the agency found that appellant sought EEO
counseling on February 13, 1998, for an alleged discriminatory action
which occurred on November 27, 1997.
In response to appellant's appeal, the agency that appellant has filed
prior EEO complaints and should therefore be versed in the applicable
45-day limitation. Furthermore, the agency notes that appellant's
allegations would not constitute a continuing violation because appellant
has not demonstrated a series of related acts, one or more which falls
within the limitations period, or the maintenance of a discriminatory
system both before and during the limitation period.
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).
In allegation 1, appellant alleged that his right to privacy was violated
when his telephone call was placed on speaker phone. 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). Thus, the agency's dismissal of allegation 1
was proper.
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 Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As to allegation 3, the record reflects that appellant clearly sought
counseling beyond the 45-day period. Appellant has not contested on
appeal or asserted any reason why waiver of the 45-day limitation is
warranted in this case. Accordingly, the agency's decision to dismiss
allegation 3 is appropriate.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1 and 3.
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:
Sept. 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations