01990234
10-20-1999
Leslie M. Wilson, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Leslie M. Wilson v. Department of Health and Human Services
01990234
October 20, 1999
Leslie M. Wilson, )
Appellant, )
)
v. )
) Appeal No. 01990234
Donna E. Shalala, ) Agency No. CDC-NCID-036-98
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On October 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 2, 1998, dismissing
his complaint for failure to state a claim. The Commission accepts
appellant's appeal in accordance with EEOC Order No. 960, as amended.
Appellant contacted an EEO counselor regarding an allegation of
discrimination based on race (black) and retaliation. Informal efforts
to resolve appellant's concerns were unsuccessful. Accordingly, on July
20, 1998, appellant filed a formal complaint. The agency defined the
issue as follows: on March 30, 1998 appellant was harassed (non-sexual)
when an offensive picture<1> appeared on his computer as a screen saver.
The agency dismissed the complaint for failure to state a claim, pursuant
to 29 C.F.R. �1614.107(a). The FAD indicated that appellant had not shown
that he suffered a direct harm affecting a term, condition or privilege
of his employment. Further, the alleged incident was not sufficiently
pervasive as to alter the conditions of his employment and create an
abusive working environment.
On appeal, the appellant contends that the alleged harassment encompasses
more than the alleged event in the instant complaint. He argues that
he has suffered continuous harassment since 1990 and provides several
other incidents as examples.
In response, the agency argues that the EEO Counselor's report and
complaint solely address the matter of the March 30, 1998 screen saver
incident. The agency also argues that the additional incidents, presented
by appellant on appeal, were raised in connection with an earlier case,
which is still pending.
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 the instant case, we find that appellant has failed to show that he
suffered a harm with respect to the terms, conditions or privileges of
his employment as a result of picture he saw on the computer screen saver.
The alleged incident does not render appellant an "aggrieved" employee.
Appellant contends that the alleged incident was harassment. 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.
Moreover, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incident 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).
Here, we find that the alleged screen saver incident is not sufficiently
severe to create a hostile work environment<2>. Therefore, the agency
properly dismissed the complaint pursuant to 29 C.F.R. �1614.107(a).
Accordingly, the agency's decision dismissing the complaint for failure
to state a claim is AFFIRMED.
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:
10/20/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The complaint describes the picture as: "the head of a dark skinned
black man whose hair was standing up on his head, eyes bucked, mouth
opened, with his hands on his head over his ears, looking downward,
as if he were in a rage or about to lose his mind."
2Although appellant raises prior incidents on appeal, we do not consider
those events in the instant case, as the record reveals that they were
not discussed with the counselor or included in the formal complaint.