01A32805_r
12-12-2003
Don M. Niles, Jr. v. United States Postal Service
01A32805
December 12, 2003
.
Don M. Niles, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32805
Agency No. 4-H-335-0031-03
DECISION
Complainant appealed to this Commission from the agency's March 10,
2003 dismissal of his employment discrimination complaint. In its
final decision, the agency defined complainant's complaint as alleging
discrimination on the bases of age and disability when he was subjected
to a hostile work environment on September 13, 2002. It then dismissed
the complaint for failure to state a claim, finding that the matters
complainant raised were isolated remarks or incidents.
In his formal complaint, complainant contends that he was subjected
to hostile work environment by management's �humiliating� remarks, �as
well [as] ignoring my medical restrictions.� For relief, complainant
requests, among other things, �to be placed in a work environment per
my restrictions.�
In an October 29, 2002 response to a request for information, complainant
provided further explanation for his claims. Therein, he detailed
several altercations with his supervisor regarding his knee injury and
attempts to complete Office of Workers' Compensation Program (OWCP)
paperwork. Allegedly, the supervisor became angry at complainant for
requesting leave to attend to his knee, and asked �how is the [agency]
responsible for your clumsiness?� He also refused to allow complainant
to leave the office on September 19, 2002, because complainant's OWCP
forms did not specifically restrict complainant from performing light
duty work.<1> Complainant explained that he became stressed from the
supervisor's treatment. Complainant notes that after a second visit to
his physician, the agency was informed that complainant �is limited in
his ability to tolerate high stress� and should only work in positions
�modified to meet his limitations.� On appeal, complainant reiterates
that the agency failed to provide him with a reasonable accommodation
by leaving him in a work environment that caused him great stress.
As an initial matter, the Commission finds that the agency improperly
identified complainant's claims. A review of the record reveals that
complainant alleged two separate claims: (1) on September 18-19, 2002,
complainant was subjected to a hostile work environment in connection
with his attempts to file OWCP documents; and (2) complainant's request
for a reasonable accommodation was denied.
With regard to the agency's dismissal, EEOC Regulations require the
dismissal of complaints that fail to state a claim. See 29 C.F.R. �
1614.107(a)(1). To state a claim, complainant must allege harm to a
term, condition, or privilege of employment on the basis of race, color,
religion, sex, national origin, age, disabling condition, or reprisal
for prior protected activity. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Hostile work environment
harassment is actionable if it sufficiently severe or pervasive to alter
the conditions of complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).
To the extent complainant alleges harassment from the comments made by
his supervisor, complainant has failed to state a claim. The Commission
notes that no tangible action was taken against complainant as a result of
these remarks, and they only occurred over a two day period. Furthermore,
we find that the incidents at issue in claim (1) are insufficient to
state a claim of harassment.
The alleged denial of an accommodation, however, states an independent
claim of disability discrimination. Therefore, we find that the agency
implicit dismissal of claim (2) for failure to state a claim is improper.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is AFFIRMED. The
agency's dismissal of complainant's claim that he was denied a reasonable
accommodation on the basis of his disability (claim (2)) is REVERSED and
we REMAND claim (2) to the agency for further processing in accordance
with the Order herein.
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
December 12, 2003
__________________
Date
1The record reveals that complainant was
allowed to go home on leave shortly after being told he would have
to stay. The supervisor allowed complainant to leave after seeking
guidance from an agency OWCP official.