01A03798_r
07-23-2002
Philip F. Istafanos, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Philip F. Istafanos v. Department of Health and Human Services
01A03798
July 23, 2002
.
Philip F. Istafanos,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A03798
Agency No. FDA-R-052-98
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant claims that
he suffered discriminatory harassment on the basis of national origin
(Egyptian) when:
(1) On March 2, 1998, without consulting complainant's supervisor, the
Microbiology Supervisor sent an electronic mail (e-mail) message to
"all" Micro Science Branch (MSB) employees, where there are only two
MSB employees, complainant and another individual of Egyptian national
origin.<1> Complainant claims that the message, which complained of
"incubating a culture at room temperature," constitutes harassment.
(2) The Microbiology Supervisor's derisive remarks have been laced with
ridicule and continue to the present to cause complainant to be laughed
at by other lab coworkers.
(3) In February 1998, the Microbiology Supervisor threw away a memorandum
announcing that complainant was the NRL employee of the month, instead
of disseminating it to other employees.
(4) On August 14, 1998, at or about the time that complainant was
applying for a merit promotion, the Microbiology Supervisor reported
to the Branch Director and accused complainant of leaving work early,
yet signing out at regular time. In a
related incident, on September 13, 1998,<2> the Branch Director
mentioned the aforementioned accusation while congratulating
complainant on his promotion, stating that it raised doubts in her mind
as she was deliberating whether to grant complainant the promotion.<3>
(5) After complainant requested that the Microbiology Supervisor remove
DNA Probe Analysis waste, the Microbiology Supervisor issued a memorandum
on May 29, 1997, stating, "the last analyst performing DNA Probe Analysis
is responsible for waste removal." This statement contradicts the DNA
protocol in which the Microbiology Supervisor stated that "waste removal"
was not a function that should be performed by the analyst.
(6) On January 4, 1996, August 9, 1997, September 20, 1997, and October
23, 1997, the Microbiology Supervisor checked on complainant more than
other employees to make certain that complainant was working while
on overtime.
(7) In or around April 1996, as a result of the Microbiology Supervisor's
continual accusations that complainant hides lab equipment, all bench
cabinets in the lab were searched.
(8) In 1993, the Microbiology Supervisor broke into complainant's locked
lab cabinet.
(9) From 1990 through 1992, the Microbiology Supervisor made derogatory
remarks about complainant's national origin (Egyptian). Specifically,
he said, "So that is the Egyptian way to do it," and "How many camels
does it take to do this?"
For the reasons described below, the Commission affirms the agency's
final decision.
The record reveals that complainant, a Microbiologist, GS-403-12,
at the Northeast Regional Laboratory, Microbiological Science Branch,
Lab L, of the Food and Drug Administration, Department of Heath and
Human Services (agency), filed the instant formal EEO complaint with
the agency on June 13, 1998. At the conclusion of the investigation,
complainant was informed
of his right to request a hearing before an EEOC Administrative Judge
(AJ) or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision. In its final
decision, the agency concluded that complainant failed to satisfy his
initial burden of establishing a prima facie case of discrimination on
the basis of national origin. The agency determined that complainant
failed to show that he was treated differently than similarly situated
persons who were not members of his protected group. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its decision.
Complainant has claimed that he was subjected to harassment on the basis
of his national origin (Egyptian). The harassment of an employee based on
his/her race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985). To prevail on his harassment
claims, complainant must show that he was subjected to harassment because
of discriminatory factors with regard to an issue in his complaint.
In assessing allegations of harassment, the Commission examines factors
such as the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state a
harassment claim. See Phillips v. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995). In determining whether
an objectively hostile or abusive work environment exists, the Commission
will consider whether a reasonable person in complainant's circumstances
would have found the alleged behavior to be hostile or abusive. See Obas
v. Department of Justice, EEOC Appeal No. 01A04389 (May 16, 2002).
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) he is a member of a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11 (cited in Obas v. Department of
Justice, EEOC Appeal No. 01A04389 (May 16, 2002)).
Furthermore, in assessing whether the complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in the
context of the totality of the circumstances, considering, inter alia,
the nature and frequency of offensive encounters and the span of time
over which the encounters occurred. See Soto v. United States Postal
Service, EEOC Appeal No. 01994396 (March 15, 2002). �[S]imple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the �terms and
conditions of employment.'� See id. (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998)).
Applying the standards described above, the Commission finds that
complainant has not provided persuasive evidence that he was subjected
to a hostile work environment.
The Microbiology Supervisor denies complainant's allegations of
harassment; however, a number of co-workers provided statements for the
record indicating that complainant and the Microbiology Supervisor had an
antagonistic relationship.<4> There is confirmation by one co-worker,
of Egyptian national origin, that the Microbiology Supervisor makes fun
of complainant's accent, saying that it is not English. He believes that
the Microbiology Supervisor "has something against" complainant because
of his national origin. There is corroboration by another co-worker,
also of Egyptian national origin, who states that the Microbiology
Supervisor makes jokes about complainant and has made anti-Egyptian
comments. These individuals, however, did not provide any specific
statements or indicate the frequency or duration of these comments,
and, no one else provided corroboration of the allegedly discriminatory
statements, or demonstrated that the actions taken by the Microbiology
Supervisor were motivated by prohibited discrimination. A poor personal
relationship between the parties is not a protected basis under Title
VII, and the record does not support the position that the statements
and actions of the Microbiology Supervisor occurred with the frequency
necessary, or were sufficiently severe, to create an intimidating,
hostile, or offensive work environment. Additionally, the record does
not indicate that the Microbiology Supervisor's behavior resulted in
disciplinary action being taken against complainant. Complainant has
not demonstrated by a preponderance of the evidence that he was subjected
to an objectively hostile work environment.
Therefore, after a careful review of the record, including evidence not
specifically addressed in this decision, we AFFIRM the agency's final
decision finding no discrimination.
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
July 23, 2002
__________________
Date
1The Microbiology Supervisor was not
complainant's supervisor.
2According to complainant's "affidavit,� the dates of the incidents
described in claim 4 occurred in 1995; however, according to the agency's
decision and the EEO Counselor's Report, the events occurred in 1998.
3Complainant does not claim that he was not granted the promotion,
and there is no indication that he was not granted the promotion.
4Many of the statements in the record were labeled as affidavits, but
many of the statements were not signed by the �affiant� and none of the
statements were notarized.