01996852
11-29-2000
Esther N. Fidis, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Esther N. Fidis v. Department of Veterans Affairs
01996852
November 29, 2000
.
Esther N. Fidis,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996852
Agency No. 200K0535992352
DECISION
Esther N. Fidis (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated August 10, 1999 dismissing her
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the basis of race (Black) when she was harassed.
In support of her allegation of harassment, complainant described the
following incident: on April 27, 1999, the Chief, Pharmacy Services,
defamed complainant's character when he sent an e-mail message to
a Registered Nurse (RN1), with a copy to the Associate Director of
Nursing, indicating that complainant had been to Pharmacy Services for
the past two days demanding that she be given controlled substances.
The e-mail message then indicated that when complainant was told that
only Registered Nurses could pick-up controlled substances, she became
disruptive, loud and abusive toward the Chief and his staff.
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency noted
that complainant did not indicate that she suffered a personal loss
or harm with regard to a term or condition of employment. The agency
further found that the incident described was isolated, that no concrete
action was taken and, therefore, that the incident did not rise to the
level of harassment.
On appeal, complainant contends that she was neither loud nor abusive
and that Pharmacy Services employees screamed at her. She notes that
a previous agency policy allowed her, as a Licensed Practical Nurse,
to pick-up controlled substances and that she did not realize the policy
had changed. She also notes that the e-mail message implies that she is
a drug addict and was read by numerous people, such that it was demeaning
and abusive to her character. In response, the agency simply asks that
its FAD be affirmed.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive and the complainant subjectively perceives it
as such.� Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable
to the complainant, determine whether they are sufficient to state a
claim. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997).
However, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995).
The case at hand involves an isolated incident wherein the Chief of
Pharmacy Services reported to the Associate Director of Nursing what he
believed to be inappropriate behavior on the part of complainant, a nurse.
There is no evidence that any action was taken once the Chief of Pharmacy
Services reported complainant's alleged behavior, nor does complainant
allege that the e-mail message or related documents were made part of her
personnel file. See, e.g., Avagliano v. United States Postal Service,
EEOC Request No. 05950517 (July 19, 1996) (In the absence of evidence or
an allegation by the complainant that an official discussion has been made
part of his or her personnel file, a complaint alleging discrimination on
the basis of an official discussion does not state a claim). Accordingly,
after a careful review of the record, we find that complainant has failed
to state a claim of harassment and hereby AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 29, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.