0120091156
06-09-2009
Chris D. Daniels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Chris D. Daniels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091156
Agency No. 4H-310-0004-09
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated December 8, 2008, dismissing his 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race/color (Caucasian/white), religion
(Christian-Methodist), disability, and reprisal for prior protected EEO
activity when:
1. on October 4, 2008, management delayed his obtaining emergency medical
care,
2. he was issued a letter of warning dated October 30, 2008, and
3. on unspecified date(s), he was not allowed to work as many hours as
less senior employees.
On October 4, 2008, while complainant was out delivering mail using a
vehicle, his wife called an agency supervisor and said she was taking
her husband to the emergency room. According to complainant, the
supervisor responded by saying complainant could not leave until the
mail was secured by a postal official and the supervisor did not arrive
until 45 minutes later. Complainant and his wife then allegedly went
to the hospital. When complainant was asked in an agency investigative
interview about the event, he declined to answer questions which would
elicit information on the medical incident.
The October 30, 2008, letter of warning charged complainant with improper
conduct and unsatisfactory performance. While not artfully written, it
appeared to be grounded in complainant not notifying management of his
situation and taking appropriate steps to secure the mail. The agency
expunged the letter of warning by November 13, 2008.
The FAD dismissed claim 2 for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that the letter of warning was expunged.
It dismissed claim 1 for failure to state a claim, reasoning it was
inextricably intertwined with claim 2. The FAD dismissed claim 3 for
raising a matter that was not brought to the attention of an EEO counselor
and was not like or related to a matter that has been brought to the
attention of an EEO counselor. 29 C.F.R. � 1614.107(a)(1). It also
dismissed claim 3 for failure to state a claim. It reasoned, in part,
that the claim was not sufficiently precise to permit processing.
On appeal complainant argues, through his representative, that while
on his route on October 4, 2008, he experienced physical discomfort and
mental disorientation, and was able to contact his wife on his cell phone.
He argues that the supervisor telling his wife to stay there until
she arrived before taking complainant to the emergency room states a
claim of harm. He argues that the letter of warning was without merit.
He restates claim 3, but provides no additional detail. In opposition
to the appeal, the agency argues that the FAD should be affirmed.
We find that the letter of warning, claim 2, was properly dismissed for
failure to state a claim because it was rescinded before the filing of
the formal complaint dated November 24, 2008. See Stevenson v. United
States Postal Service, EEOC Appeal No. 01A52057 (April 27, 2005)
(affirmed dismissal for failure to state a claim of a complaint alleging
discriminatory seven day suspension where via a grievance settlement,
the suspension was rescinded prior to the filing of the formal complaint);
Sowell v. United States Postal Service, EEOC Appeal No. 01A45473 (November
24, 2004) (affirmed dismissal for failure to state a claim of a complaint
alleging discriminatory notice of medical separation where via a grievance
settlement, the notice was rescinded prior to the filing of the formal
complaint).
We turn to claim 1. In Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. Harris, supra at 21-22. A claim of harassment is
actionable if the harassment to which the complainant has allegedly been
subjected is sufficiently severe or pervasive to alter the conditions
of the complainant's employment.
Complainant does not contend that the delay in going to the hospital
worsened his condition, or that a like incident had happened before
or since. We find that this isolated incident was not of sufficient
severity to state a claim of harassment or otherwise state a claim.
Gutierrez v. United States Postal Service, EEOC Appeal No. 01A24457
(December 10, 2002) (dismissed for failure to state a claim complaint that
complainant was discriminated against in violation of Title VII and the
Rehabilitation act when she was not given prompt medical attention after
a package with possibly contaminated blood got on her hand. Complainant
did not show she suffered a personal harm or loss to a term, condition,
or privilege of her employment as a result of the delayed attention).
We also find that the delay in the instant case would not reasonably
likely deter protected EEO activity.
We disagree with the finding in the FAD that complainant did not raise
claim 3 with the EEO counselor. The counselor's report, at the top of
page 3, shows he discussed this matter with the counselor. However,
we agree with the FAD that it fails to state a claim because the
claim is vague. Complainant gave no dates or range of dates, does not
state what work he was denied, or any other particularized information.
This is insufficient to permit an investigation into the merits of claim.
Further, complainant did provide any specificity on appeal, even though
the FAD stated the claim should be dismissed for being vague.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 9, 2009
__________________
Date
2
0120091156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091156