Stanley O. Gaines, Jr., Archive: August 7, 2000, Open Records Appeal to National EEOC

Gaines gMoses	Dr. Stanley O. Gaines, Jr., Archive: Date: 8/7/00 Type: Letter To: National EEOC From: Dr. Stanley O. Gaines, Jr. Re: Open Records Appeal Att: Previous Letters OPEN RECORDS APPEAL TO NATIONAL EEOC August 7, 2000 Mr. A. Jacy Thurmond, Jr. Assistant Legal Counsel/FOIA U. S. Equal Employment Opportunity Commission 1801 L St., N. W 6th Floor Washington, DC 20507 Dear Mr. Thurmond: I am writing to appeal the Los Angeles EEOC office's recent rejection (August 2, 2000) of my requests to copy, inspect, and, if necessary, correct a negative evaluation letter from the 1998-99 Pomona College Faculty Personnel Committee that was placed in my 1998-99 tenure review file, pursuant to the Freedom of Information Act. I am an African American male who was denied tenure by Pomona College in Fall 1998, and I have four sets of active charges pending (four charges of racial discrimination and three charges of retaliation). For nearly two years, Pomona College has illegally withheld the Faculty Personnel Committee letter from me. Now, the Los Angeles EEOC office is telling me that it has a legal right to withhold a document that my former employer illegally withheld from me in the first place. According to Angel Price, a paralegal specialist within the Los Angeles EEOC office, "The files to which you seek access are open charges being processed by the Commission under Title VII of the Civil Rights Act of 1964, as amended. Under these circumstances your request for access to information in this file must be denied in its entirety" (p. 1, emphasis in original). At the outset, I note that the above statement by Price is misleading, because I did not ask for access to multiple files. Rather, I requested one letter, from one file (case # 340991279). Even more important, Price's citation of Title VII of the Civil Rights Act of 1964 in defense of the Los Angeles EEOC office's position in rejecting my FOIA requests fails to acknowledge that the same portion of the Civil Rights Act -- along with the U. S. Supreme Court decision in University of Pennsylvania v. EEOC (1990) -- has been cited by the American Association of University Professors (AAUP) in support of the position that "...[F]aculty members should, at all times, have access to their own [personnel] files, including unredacted letters, both internal and external" (p. 43, Access to Faculty Personnel Files, 1995 AAUP Redbook). The AAUP, which sets the standards for academic freedom and tenure in colleges and universities throughout the United States, was referring to the personnel files as assembled originally by the colleges and universities during reviews for contract renewals, promotions, and tenure. I have not asked the Los Angeles EEOC office for any materials that were generated by Pomona College, or by the Los Angeles EEOC office itself, in response to my charges of discrimination or retaliation. Rather, I asked for a single document, the Faculty Personnel Committee letter, which appeared in my original tenure review file as assembled by Pomona College. Price goes on to claim that "Under the provisions of FOIA, material in open agency charge files may be withheld" (p. 1), citing the seventh FOIA Exemption, 5 U. S. C. Section 552(b)(7)(A): (7) records of information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information. . . . (A) could reasonably be expected to interfere with enforcement proceedings. . . . After quoting the above FOIA exemption, Price claims, "When a file is open and being processed, production of any documents via FOIA during that time would severely interfere with the present enforcement proceedings brought by the Commission" (p. 2). The remainder of Price's letter is based on the premise that Exemption 7(A) of the FOIA prevents the Los Angeles EEOC office from granting me access to a letter that Pomona College, as a federal contractor, illegally withheld from me, even after I invoked the Privacy Act of 1974. However, the U. S. EEOC headquarters' own document, "EEOC and FOIA" (available via the Internet), clearly indicates that the U. S. EEOC headquarters does not cite the above exemption as a basis for EEOC rejections of FOIA requests. Consider the following passage from the "EEOC and FOIA" document: Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-3 (title VII and Americans With Disabilities Act Discrimination Case Files) and EEOC/GOVT-1 (Equal Employment Opportunity Complaint Records and Appeal Records) are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Act. The Commission has determined to exempt these systems from the above named provisions of the Privacy Act for the following reasons: (a) The files in these systems contain information obtained by the Commission and other Federal agencies in the course of investigations of charges and complaints that violations of title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans With Disabilities Act and the Rehabilitation Act have occurred. In some instances, agencies obtain information regarding unlawful employment practices other than those complained of by the individual who is the subject of the file. It would impede the law enforcement activities of the Commission and other agencies for these provisions of the Act to apply to such records. (b) The subject individuals of the files in these systems know that the Commission or their employing agencies are maintaining a file on their charge or complaint, and the general nature of the information contained in it. (c) Subject individuals of the files in each of these systems have been provided a means of access to their records by the Freedom of Information Act. Subject individuals of the charge files in system EEOC-3 have also been provided a means of access to their records by section 83 of the Commission's Compliance Manual. Subject individuals of the case files in system EEOC/GOVT- 1 have also been provided a means of access to their records by the Commission's Equal Employment Opportunity in the Federal Government regulation, 29 CFR 1613.220. (p. 248-289, emphasis added) A comparison of Price's claims with the actual policy of the U. S. EEOC headquarters reveals that Price inappropriately tried to use a Privacy Act exemption as the basis for rejecting my FOIA request. Moreover, Price misled me badly in an e-mail message sent to me before the Los Angeles EEOC office rejected my FOIA request. Price led me to believe that I could request access to the aforementioned Faculty Personnel Committee letter under Section 83 of the EEOC Compliance Manual, but not under the FOIA. To make matters worse, Section 83 of the Compliance Manual is not available via the Internet; and several days after I asked Price to send me a copy of Section 83 of the Compliance Manual via fax or express mail, Price still has not acknowledged that I asked for a copy of that section. It appears that the Los Angeles EEOC office has engaged in illegal behavior -- specifically, by violating the FOIA -- in rejecting my requests for the Faculty Personnel Committee letter. Accordingly, I submit the present appeal to the U. S. EEOC headquarters. I am including an Appendix as part of the present faxed materials; the Appendix consists of my requests to the Los Angeles EEOC office under the FOIA, along with my recent directs requests to Pomona College. I will send you a separate set of faxed materials verifying the FOIA violation by the Los Angeles EEOC office, the Privacy Act violation by Pomona College (notice that the College deliberately avoids using the term "federal contractor," instead making the false claim that I had depicted Pomona College as a "federal agency"), and the AAUP statement, "Access to Faculty Personnel Files." I hasten to add that I am in Day 34 of a hunger strike in protest of Pomona College's illegal acts of discrimination and procedural violations against me. As such, I humbly ask that the present appeal receive expedited processing. Until August 31, you can reach me as follows: Dr. Stanley O. Gaines, Jr., 1325 N. College Ave., #E-131, Claremont, CA 91711 (phone 909-624-1284; e-mail sogainesjr@aol.com). Thank you for your prompt attention to this urgent appeal. Sincerely, (SIGNED) Stanley O. Gaines, Jr. Appendix July 28, 2000 Ms. Barbara Tucker Los Angeles EEOC Office FAX 213-894-1044 Dear Ms. Tucker: Pursuant to the Freedom of Information Act, I hereby request a meeting with you, at a time and date that are most convenient for you during the next week (i.e., by August 4, 2000), so that I can inspect and copy the negative Faculty Personnel Committee letter, from Fall 1998, in my personnel file. Furthermore, I am requesting expedited processing of this request. I reserve the right to correct any false or misleading information contained in the Faculty Personnel Committee letter. Please feel free to contact me at home (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284; e-mail sogainesjr@aol.com) at your earliest convenience. Thanks in advance for complying with my request. Sincerely, Stanley O. Gaines, Jr. cc: National EEOC Headquarters July 29, 2000 Ms. Pamela J. Thomason Regional Attorney Los Angeles EEC Office FAX 213-894-1118 Dear Ms. Thomason: After I sent a Freedom of Information Act (FOIA) request to the lead investigator (Ms. Barbara Tucker) regarding a very important document in my file, I learned that it might be more appropriate for me to send such a request to you. Thus, pursuant to the Freedom of Information Act, I hereby request permission to visit the Los Angeles EEOC office during the next week (i.e., between now and August 5, 2000) to inspect and copy the negative Faculty Personnel Committee letter, from Fall 1998, in my personnel file. Furthermore, I am requesting expedited processing of this request. Having been on a hunger strike for 25 days as of this writing, and having lost 27 pounds during that time, I am concerned about my long-term health and need to obtain the Faculty Personnel letter quickly. Finally, I reserve the right to correct any false or misleading information contained in the Faculty Personnel Committee letter. Please feel free to contact me at home (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284; e-mail sogainesjr@aol.com) at your earliest convenience. Thanks in advance for complying with my request. Sincerely, (SIGNED) Stanley O. Gaines, Jr. cc: National EEOC Headquarters July 21, 2000 Dr. Peter Stanley President Pomona College FAX 909-621-8499 Dear Peter: As you know, back in Fall 1998, I requested that the 1998-99 Faculty Personnel Committee (FPC), of which you were chair, give me a copy of the letter in which the FPC upheld the negative vote of Psychology, and dismissed the positive vote of Black Studies, during my 1998-99 review for tenure and promotion from Assistant Professor to Associate Professor. In response, you claimed that you could not do so, citing a "confidentiality" clause in the 1998-99 Faculty Handbook. I now know that you were not telling me the truth. According to the Privacy Act of 1974, I was -- and still am -- entitled to inspect and copy the negative FPC letter. Moreover, Pomona College's "confidentiality" clause does not supersede federal law. Pursuant to the Privacy Act of 1974, I hereby request that the College arrange a day and time between now and next Friday (7/28/2000) that would be convenient for a witness and myself to inspect and copy the negative FPC letter. Also, I hereby request that the witness and myself be allowed to discuss the negative FPC letter at the time of inspection. Finally, I reserve the right to request that the College correct any and all inaccuracies or misrepresentations contained in the negative FPC letter. I have quoted the relevant portions of the Privacy Act of 1974 in an appendix to the present letter. I am sending copies of this letter to various local and national news organizations, so that both my request and your response will be made public. Please feel free to contact me at home (1325 N. College Ave., Claremont, CA 91711; phone 909-624-1284; e-mail sogainesjr@aol.com) if you have any comments or questions. Thanks in advance for complying with my requests. Sincerely, (SIGNED) Stan Gaines cc: Inland Valley News Inland Valley Our Times Inland Valley Daily Bulletin Claremont Courier Black Issues in Higher Education Chronicle of Higher Education July 24, 2000 Dr. Peter Stanley President Pomona College FAX 909-621-8499 Dear Peter: As you know, in order to renominate me for tenure and promotion from Assistant Professor to Associate Professor, you will need to take two documents back to the Cabinet: (1) My updated curriculum vita, or CV; and (2) a corrected version of the 1998-99 Faculty Personnel Committee. Included with the present letter is my updated CV. Now, I need to know when I cam come in this week (no later than Friday, July 28) to inspect and copy the FPC letter, with a witness of my choosing on hand. Again, I reserve the right to correct any inaccuracies or misrepresentations in the negative FPC letter. Please contact me (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284) as soon as you receive this letter and CV. Sincerely, (SIGNED) Stan Gaines cc: Inland Valley News Inland Valley Daily Bulletin Inland Valley Our Times Black Issues in Higher Education Chronicle of Higher Education Top

Gaines

gMoses

Dr. Stanley O. Gaines, Jr., Archive:
Date: 8/7/00
Type: Letter
To: National EEOC
From: Dr. Stanley O. Gaines, Jr.
Re: Open Records Appeal
Att: Previous Letters

OPEN RECORDS APPEAL TO NATIONAL EEOC

August 7, 2000

Mr. A. Jacy Thurmond, Jr.
Assistant Legal Counsel/FOIA
U. S. Equal Employment Opportunity
Commission
1801 L St., N. W
6th Floor
Washington, DC 20507

Dear Mr. Thurmond:

I am writing to appeal the Los Angeles EEOC office's recent rejection (August 2, 2000) of my requests to copy, inspect, and, if necessary, correct a negative evaluation letter from the 1998-99 Pomona College Faculty Personnel Committee that was placed in my 1998-99 tenure review file, pursuant to the Freedom of Information Act. I am an African American male who was denied tenure by Pomona College in Fall 1998, and I have four sets of active charges pending (four charges of racial discrimination and three charges of retaliation). For nearly two years, Pomona College has illegally withheld the Faculty Personnel Committee letter from me. Now, the Los Angeles EEOC office is telling me that it has a legal right to withhold a document that my former employer illegally withheld from me in the first place.

According to Angel Price, a paralegal specialist within the Los Angeles EEOC office, "The files to which you seek access are open charges being processed by the Commission under Title VII of the Civil Rights Act of 1964, as amended. Under these circumstances your request for access to information in this file must be denied in its entirety" (p. 1, emphasis in original). At the outset, I note that the above statement by Price is misleading, because I did not ask for access to multiple files. Rather, I requested one letter, from one file (case # 340991279).

Even more important, Price's citation of Title VII of the Civil Rights Act of 1964 in defense of the Los Angeles EEOC office's position in rejecting my FOIA requests fails to acknowledge that the same portion of the Civil Rights Act -- along with the U. S. Supreme Court decision in University of Pennsylvania v. EEOC (1990) -- has been cited by the American Association of University Professors (AAUP) in support of the position that "...[F]aculty members should, at all times, have access to their own [personnel] files, including unredacted letters, both internal and external" (p. 43, Access to Faculty Personnel Files, 1995 AAUP Redbook). The AAUP, which sets the standards for academic freedom and tenure in colleges and universities throughout the United States, was referring to the personnel files as assembled originally by the colleges and universities during reviews for contract renewals, promotions, and tenure. I have not asked the Los Angeles EEOC office for any materials that were generated by Pomona College, or by the Los Angeles EEOC office itself, in response to my charges of discrimination or retaliation. Rather, I asked for a single document, the Faculty Personnel Committee letter, which appeared in my original tenure review file as assembled by Pomona College.

Price goes on to claim that "Under the provisions of FOIA, material in open agency charge files may be withheld" (p. 1), citing the seventh FOIA Exemption, 5 U. S. C. Section 552(b)(7)(A):

(7) records of information compiled for law enforcement purposes, but only to the extent that production of such law enforcement records or information. . . . (A) could reasonably be expected to interfere with enforcement proceedings. . . .

After quoting the above FOIA exemption, Price claims, "When a file is open and being processed, production of any documents via FOIA during that time would severely interfere with the present enforcement proceedings brought by the Commission" (p. 2). The remainder of Price's letter is based on the premise that Exemption 7(A) of the FOIA prevents the Los Angeles EEOC office from granting me access to a letter that Pomona College, as a federal contractor, illegally withheld from me, even after I invoked the Privacy Act of 1974. However, the U. S. EEOC headquarters' own document, "EEOC and FOIA" (available via the Internet), clearly indicates that the U. S. EEOC headquarters does not cite the above exemption as a basis for EEOC rejections of FOIA requests. Consider the following passage from the "EEOC and FOIA" document:

Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2),
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-3 (title VII and Americans With Disabilities Act Discrimination Case Files) and EEOC/GOVT-1 (Equal Employment Opportunity Complaint Records and Appeal Records) are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Act. The Commission has determined to exempt these systems from the above named provisions of the Privacy Act for the following reasons:

(a) The files in these systems contain information obtained by the Commission and other Federal agencies in the course of investigations of charges and complaints that violations of title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans With Disabilities Act and the Rehabilitation Act have occurred. In some instances, agencies obtain information regarding unlawful employment practices other than those complained of by the individual who is the subject of the file. It would impede the law enforcement activities of the Commission and other agencies for these provisions of the Act to apply to such records.

(b) The subject individuals of the files in these systems know that the Commission or their employing agencies are maintaining a file on their charge or complaint, and the general nature of the information contained in it.

(c) Subject individuals of the files in each of these systems have been provided a means of access to their records by the Freedom of Information Act. Subject individuals of the charge files in system EEOC-3 have also been provided a means of access to their records by section 83 of the Commission's Compliance Manual. Subject individuals of the case files in system EEOC/GOVT- 1 have also been provided a means of access to their records by the Commission's Equal Employment Opportunity in the Federal Government regulation, 29 CFR 1613.220. (p. 248-289, emphasis added)

A comparison of Price's claims with the actual policy of the U. S. EEOC headquarters reveals that Price inappropriately tried to use a Privacy Act exemption as the basis for rejecting my FOIA request. Moreover, Price misled me badly in an e-mail message sent to me before the Los Angeles EEOC office rejected my FOIA request. Price led me to believe that I could request access to the aforementioned Faculty Personnel Committee letter under Section 83 of the EEOC Compliance Manual, but not under the FOIA. To make matters worse, Section 83 of the Compliance Manual is not available via the Internet; and several days after I asked Price to send me a copy of Section 83 of the Compliance Manual via fax or express mail, Price still has not acknowledged that I asked for a copy of that section.

It appears that the Los Angeles EEOC office has engaged in illegal behavior -- specifically, by violating the FOIA -- in rejecting my requests for the Faculty Personnel Committee letter. Accordingly, I submit the present appeal to the U. S. EEOC headquarters. I am including an Appendix as part of the present faxed materials; the Appendix consists of my requests to the Los Angeles EEOC office under the FOIA, along with my recent directs requests to Pomona College. I will send you a separate set of faxed materials verifying the FOIA violation by the Los Angeles EEOC office, the Privacy Act violation by Pomona College (notice that the College deliberately avoids using the term "federal contractor," instead making the false claim that I had depicted Pomona College as a "federal agency"), and the AAUP statement, "Access to Faculty Personnel Files."

I hasten to add that I am in Day 34 of a hunger strike in protest of Pomona College's illegal acts of discrimination and procedural violations against me. As such, I humbly ask that the present appeal receive expedited processing. Until August 31, you can reach me as follows: Dr. Stanley O. Gaines, Jr., 1325 N. College Ave., #E-131, Claremont, CA 91711 (phone 909-624-1284; e-mail sogainesjr@aol.com). Thank you for your prompt attention to this urgent appeal.

Sincerely,

(SIGNED)

Stanley O. Gaines, Jr.

Appendix

July 28, 2000

Ms. Barbara Tucker
Los Angeles EEOC Office
FAX 213-894-1044

Dear Ms. Tucker:

Pursuant to the Freedom of Information Act, I hereby request a meeting with you, at a time and date that are most convenient for you during the next week (i.e., by August 4, 2000), so that I can inspect and copy the negative Faculty Personnel Committee letter, from Fall 1998, in my personnel file. Furthermore, I am requesting expedited processing of this request. I reserve the right to correct any false or misleading information contained in the Faculty Personnel Committee letter.

Please feel free to contact me at home (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284; e-mail sogainesjr@aol.com) at your earliest convenience. Thanks in advance for complying with my request.

Sincerely,

Stanley O. Gaines, Jr.

cc: National EEOC Headquarters

July 29, 2000

Ms. Pamela J. Thomason
Regional Attorney
Los Angeles EEC Office
FAX 213-894-1118

Dear Ms. Thomason:

After I sent a Freedom of Information Act (FOIA) request to the lead investigator (Ms. Barbara Tucker) regarding a very important document in my file, I learned that it might be more appropriate for me to send such a request to you. Thus, pursuant to the Freedom of Information Act, I hereby request permission to visit the Los Angeles EEOC office during the next week (i.e., between now and August 5, 2000) to inspect and copy the negative Faculty Personnel Committee letter, from Fall 1998, in my personnel file. Furthermore, I am requesting expedited processing of this request. Having been on a hunger strike for 25 days as of this writing, and having lost 27 pounds during that time, I am concerned about my long-term health and need to obtain the Faculty Personnel letter quickly. Finally, I reserve the right to correct any false or misleading information contained in the Faculty Personnel Committee letter.

Please feel free to contact me at home (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284; e-mail sogainesjr@aol.com) at your earliest convenience. Thanks in advance for complying with my request.

Sincerely,

(SIGNED)

Stanley O. Gaines, Jr.

cc: National EEOC Headquarters

July 21, 2000

Dr. Peter Stanley
President
Pomona College
FAX 909-621-8499

Dear Peter:

As you know, back in Fall 1998, I requested that the 1998-99 Faculty Personnel Committee (FPC), of which you were chair, give me a copy of the letter in which the FPC upheld the negative vote of Psychology, and dismissed the positive vote of Black Studies, during my 1998-99 review for tenure and promotion from Assistant Professor to Associate Professor. In response, you claimed that you could not do so, citing a "confidentiality" clause in the 1998-99 Faculty Handbook. I now know that you were not telling me the truth. According to the Privacy Act of 1974, I was -- and still am -- entitled to inspect and copy the negative FPC letter. Moreover, Pomona College's "confidentiality" clause does not supersede federal law.

Pursuant to the Privacy Act of 1974, I hereby request that the College arrange a day and time between now and next Friday (7/28/2000) that would be convenient for a witness and myself to inspect and copy the negative FPC letter. Also, I hereby request that the witness and myself be allowed to discuss the negative FPC letter at the time of inspection. Finally, I reserve the right to request that the College correct any and all inaccuracies or misrepresentations contained in the negative FPC letter. I have quoted the relevant portions of the Privacy Act of 1974 in an appendix to the present letter.

I am sending copies of this letter to various local and national news organizations, so that both my request and your response will be made public. Please feel free to contact me at home (1325 N. College Ave., Claremont, CA 91711; phone 909-624-1284; e-mail sogainesjr@aol.com) if you have any comments or questions. Thanks in advance for complying with my requests.

Sincerely,

(SIGNED)

Stan Gaines

cc: Inland Valley News
Inland Valley Our Times
Inland Valley Daily Bulletin
Claremont Courier
Black Issues in Higher Education
Chronicle of Higher Education

July 24, 2000

Dr. Peter Stanley
President
Pomona College
FAX 909-621-8499

Dear Peter:

As you know, in order to renominate me for tenure and promotion from Assistant Professor to Associate Professor, you will need to take two documents back to the Cabinet: (1) My updated curriculum vita, or CV; and (2) a corrected version of the 1998-99 Faculty Personnel Committee. Included with the present letter is my updated CV. Now, I need to know when I cam come in this week (no later than Friday, July 28) to inspect and copy the FPC letter, with a witness of my choosing on hand. Again, I reserve the right to correct any inaccuracies or misrepresentations in the negative FPC letter. Please contact me (1325 N. College Ave., #E-131, Claremont, CA 91711; ph. 909-624-1284) as soon as you receive this letter and CV.

Sincerely,

(SIGNED)

Stan Gaines

cc: Inland Valley News
Inland Valley Daily Bulletin
Inland Valley Our Times
Black Issues in Higher Education
Chronicle of Higher Education

Top

Dr. Stanley O. Gaines, Jr., Archive: Date: 8/7/00 Type: Letter To: National EEOC From: Dr. Stanley O. Gaines, Jr. Re: Open Records Appeal Att: Previous Letters

Dr. Stanley O. Gaines, Jr., Archive:
Date: 8/7/00
Type: Letter
To: National EEOC
From: Dr. Stanley O. Gaines, Jr.
Re: Open Records Appeal
Att: Previous Letters