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.