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.