Andrew Sheppard, Complainant,v.Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.

Equal Employment Opportunity CommissionSep 21, 2000
01a01296 (E.E.O.C. Sep. 21, 2000)

01a01296

09-21-2000

Andrew Sheppard, Complainant, v. Ida L. Castro, Chairwoman, Equal Employment Opportunity Commission, Agency.


Andrew Sheppard v. Equal Employment Opportunity Commission

01A01296

September 21, 2000

Andrew Sheppard, )

Complainant, )

)

v. ) Appeal No. 01A01296

) Agency No. 0-9900099-HQ

Ida L. Castro, )

Chairwoman, )

Equal Employment Opportunity )

Commission, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's<1> decision

dated October 25, 1999, dismissing complainant's complaint for failing

to state a claim and for stating the same claim that is pending

before the Commission pursuant to the regulation set forth at 64

Fed. Reg. 37,644, 37,656 (to be codified and hereinafter cited as 29

C.F.R. � 1614.107(a)(1)).<2>

The agency defined the complaint as alleging that complainant was

discriminated against on the basis of retaliation when:

The Director of Field Programs excluded complainant from Director

positions.

The agency's legal representative in three of complainant's other

complaints that are in the hearings process is requesting information

concerning one of complainant's EEO complaints which was settled, even

though she and the agency are aware that the EEO process was successfully

concluded in 1995.

Complainant was informed that Person A had been disciplined because

Person A gave an affidavit in complainant's case.

The agency also found that complainant alleged that as a result of the

aforementioned retaliatory actions complainant was:

diagnosed by his doctor as �totally disabled;� and

unable to apply for the current Director positions for Baltimore and

Cleveland due to his illness.

The agency dismissed claim 1 for stating the same claim that is pending

before the Commission. The agency dismissed claims 2 - 5 for failure

to state a claim. The Commission notes that in the instant complaint,

complainant alleged on the complaint form that he was discriminated

against on the bases of disability and reprisal. Complainant has not

challenged the agency's framing of the complaint.

The Commission finds that claim 1 was raised by complainant in another

EEO complaint and is the subject of an appeal, EEOC Appeal No. 01A02919,

that is pending before the Commission. Therefore, we find that claim

1 was properly dismissed pursuant to � 1614.107(a)(1).

The Commission finds that complainant was not aggrieved in claims 2 or

3 and that the actions at issue in claims 2 and 3 were not reasonably

likely to deter complainant or others from engaging in protected activity.

See Lindsey v. USPS, EEOC Request No. 05980410 (Nov. 4, 1999) (citing

EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Regarding claim 2,

we find that complainant's claim of improper discovery requests should

be raised during the processing of the underlying matter.<3> Regarding

claim 3, we note that complainant has not provided any documentary

evidence showing that Person A was disciplined. The EEO Counselor's

Report indicates that the agency claims that Person A was not disciplined.

Person A, according to complainant, was the Equal Opportunity Specialist,

who processed a prior EEO matter which complainant initiated in 1995.

Even if Person A was disciplined, the Commission finds that complainant

has failed to show in the instant matter how the disciplining of a

neutral party who is part of the EEO Office is reasonably likely to deter

complainant or others from engaging in protected activity. Therefore,

the Commission finds that the agency properly dismissed claims 2 and 3

for failure to state a claim pursuant to � 1614.107(a)(1).

The Commission finds that claims 4 and 5, whether based on retaliation,

disability, or both bases, are really only claims of harm emanating

from the agency's actions in claims 1 - 3. Thus, we find that claims

4 and 5 do not allege that the agency took any discriminatory actions

apart from the incidents raised in claims 1 - 3. The Commission finds

that the agency properly dismissed claims 4 and 5 for failure to state

a claim pursuant to � 1614.107(a)(1).

The agency's decision dismissing the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

September 21, 2000

DATE Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________________ _________________________

Date

1In the instant matter the EEOC is both the respondent and the

adjudicatory authority. The Commission's adjudicatory function is

separate and independent from those offices charged with the in-house

processing and resolution of discrimination complaints. In this

decision the terms �Commission� or �EEOC� will be used when referring

to the adjudicatory authority and the term �agency� will be used when

referring to the respondent part in this action.

2On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3The Commission notes that complainant did raise such an objection to

the discovery requests by the agency and that matter is pending before

the Commission in EEOC Appeal No. 01A02919.