Neil Keller, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human, Services, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01A03997 (E.E.O.C. Nov. 30, 2000)

01A03997

11-30-2000

Neil Keller, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human, Services, Agency.


Neil Keller v. Department of Health and Human Services

01A03997

November 30, 2000

.

Neil Keller,

Complainant,

v.

Donna E. Shalala,

Secretary,

Department of Health and Human,

Services,

Agency.

Appeal No. 01A03997

Agency No. IHS-034-00

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated April 20, 2000, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of race (White), religion (Jewish) and

reprisal (prior EEO activity). Therein, complainant noted that on

December 3, 1999, he was transferred from one agency division (Indian

Health Service) to another agency division (Program Support Center).

Complainant claimed that while working for the Indian Health Service,

he faced severe racism, anti-Semitism, and hostility. Complainant also

claimed that, on December 23, 1999, he went to his old office at the

Indian Health Service to say goodbye to several former co-workers and

to get some of his personal items; and that he found three swastikas in

his cubicle, and three more swastikas on a name tag near the cubicle,

in a common area. Complainant claimed that he does not feel safe in

the building, and that he feels as if he is a �sitting duck,� waiting

for the next hostile act.

In its final decision, the agency identified complainant's complaint in

the following fashion:

On December 23, 1999, he found swastika symbols on three documents in

his cubicle and on his name-tag.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency determined that because complainant did not

suffer any adverse employment action as a result of the incident described

in the instant complaint, he was not an aggrieved employee within the

meaning of EEOC Regulations. The agency also found that complainant

failed to establish that the incident occurring on December 23, 1999,

amounted to harassment.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

Complainant claims that he has been subjected to unlawful racial,

religious, and reprisal discrimination. On appeal, complainant indicates

that the agency's tolerance of such harassment has, over time, created

a hostile work environment. To establish a claim of harassment which

creates a hostile work environment, the harassment at issue must generally

be ongoing and continuous; a few isolated incidents are usually not

sufficient to show harassment. See Banks v. Department of Health and

Human Services, EEOC Request No. 05940481 (February 6, 1995); McGivern

v. United States Postal Service, EEOC Request No. 05930481 (March 17,

1994). In determining whether the alleged harassment affected a term,

condition, or privilege of complainant's employment, the conduct at issue

must be viewed in the context of the totality of the circumstances,

�considering, inter alia, the nature and frequency of the offensive

encounters and the span of time over which the encounters occurred.� Id.

A review of the entire record, including the formal complaint and

complainant's statement on appeal, reveals that complainant not merely

claims that he was the victim of unlawful employment discrimination

relating to the purported incident of December 23, 1999; rather,

complainant claims that he has been subjected to continuous harassment

over a period of time. The Commission determines that a fair reading

of complainant's complaint is that complainant claimed he is the victim

of ongoing harassment. Moreover, we find that the claim of harassment

raised involves a symbol of hatred that is so egregious that it should not

be dismissed for failure to state a claim. The Commission determines,

therefore, that the agency's dismissal of complainant's complaint for

failure to state a claim was improper. Accordingly, the agency's decision

to dismiss complainant's complaint is hereby REVERSED. The complaint

as clarified herein REMANDED to the agency for further processing in

accordance with this decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant also has the right

to file a civil action to enforce compliance with the Commission's order

prior to or following an administrative petition for enforcement. See 29

C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action

for enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 (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 30, 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.