01a54005
09-13-2005
Marvin C. Thurston, Complainant, v. Lawrence M. Small, Secretary, Smithsonian Institution Agency.
Marvin C. Thurston v. Smithsonian Institution
01A54005
September 13, 2005
.
Marvin C. Thurston,
Complainant,
v.
Lawrence M. Small,
Secretary,
Smithsonian Institution
Agency.
Appeal No. 01A54005
Agency No. SI #05-12-040105
DECISION
Complainant filed a timely appeal from the agency's final decision
dismissing his complaint on procedural grounds. In a complaint
dated April 1, 2005, complainant alleged that he was subjected to a
harassment, in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., on the bases of
race (African-American) and color (Black) when, on November 5, 2004,
he discovered his work area was �torn up.� Specifically, complainant
contended that his work papers and other items which were stored in his
work area, were turned over and thrown on the floor by co-workers who
were looking for keys to a truck.
Upon review, the Commission finds that the complaint is appropriately
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim of harassment. Harassment is actionable only if it is sufficiently
severe or pervasive so as to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc. 510 U.S. 17 (November 9,
1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994) at 3, 6. An objectively hostile or
abusive work environment exists when a reasonable person would find it
hostile or abusive and the complainant subjectively perceives it as such.
In determining whether the alleged harassment created an hostile work
environment all of the circumstances must be considered, including the
following criteria: the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating; and whether
it unreasonably interferes with an employee's work performance. See
Harris, 510 U.S. at 23.
Considering all of the circumstances, evaluating these criteria,
applying them to the incident raised in the instant complaint, and
viewing the claim in the light most favorable to complainant, the
Commission finds that the single incident is insufficiently severe and
insufficiently pervasive to rise to the level of actionable harassment.
In reaching this conclusion, we note that Title VII is not meant to be a
general civility code. Rather, Title VII was enacted to protect against
behavior that is based on a protected basis and so severe as to alter
the complainant's working conditions. Accordingly, the agency's final
decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 13, 2005
__________________
Date