01A12400_r
06-07-2002
Charles W. Ross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles W. Ross v. United States Postal Service
01A12400
June 7, 2002
.
Charles W. Ross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12400
Agency No. 1F-901-0187-00
DECISION
Complainant initiated contact with an EEO Counselor on August 4, 2000.
On January 11, 2001, complainant filed a formal EEO complaint wherein
he claimed that he had been discriminated against on the bases of his
disability (carpal tunnel syndrome and knee injury) and in reprisal for
his previous EEO activity under the Rehabilitation Act when:
1. On or about June 20, 2000, he became aware that he was not allowed
to keep his health insurance for a year following his removal, and he
was not given a health insurance continuation form.
2. The processing of complainant's disability retirement application
was delayed for six months.
3. Complainant could not file for unemployment benefits because he was
not provided with a Form SF-8.
In its decision dated February 12, 2001, the agency dismissed claims
1 and 3 of the complaint pursuant to 29 C.F.R. �1614.107(a)(2), on
the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant
was removed from employment with the agency effective January 1, 2000,
and that his health benefits were terminated effective January 14, 2000.
According to the agency, a copy of Form 2810 (SF-2810), Notice of Change
in Health Benefit Enrollment, addressed to complainant, is included
in complainant's official personnel file. The agency determined that
complainant was issued a Form SF-8 on February 4, 2000. The agency
stated that complainant's contact of an EEO Counselor on August 3,
2000, was after the expiration of the 45-day limitation period for
initiating contact with an EEO Counselor. With regard to claim 2, the
agency dismissed this claim pursuant to 29 C.F.R. �1614.107(a)(5), on the
grounds of mootness. The agency stated that complainant's application
for a disability retirement was disapproved by the Office of Personnel
Management on September 15, 2000. The agency reasoned that any alleged
delay in processing the disability retirement application was rendered
moot since disapproval by the Office of Personnel Management eradicated
any effects of the alleged delay and there is no reasonable expectation
that any future delay by the agency will occur.
On appeal, complainant maintains that he did not receive the SF-2810
and SF-8 forms. According to complainant, he did not become aware that
his health insurance coverage had lapsed until on or about June 20, 2000,
when he was given this information by his health maintenance organization.
Complainant claims that he did not know he could apply for unemployment
compensation until he was so informed by his union on August 3, 2000.
With regard to his disability retirement application, complainant states
that the form was not received by the Office of Personnel Management
until nine months after he filed his application with an agency official.
Complainant requests an award of compensatory damages for his emotional
suffering.
With respect to claim (1), we find that complainant's contact of an EEO
Counselor on August 3, 2000, was not within the 45-day limitation period.
Complainant was removed from employment with the agency on January 1,
2000. We find that complainant should have had a reasonable suspicion
of discrimination more than 45 days before he initiated contact with
an EEO Counselor. Complainant should have been attentive to his health
insurance status during the period following his termination. We find
that complainant has failed to submit sufficient justification for an
extension of the 45-day limitation period. Accordingly, the agency's
decision to dismiss claim (1) on the grounds of untimely EEO contact
was proper and is AFFIRMED.
As for claims (2) and (3), we find that complainant has failed to state
a claim pursuant to 29 C.F.R. �1614.107(a)(1). Complainant has failed
to establish how he was harmed with regard to the alleged delay in the
processing of his application for a disability retirement or when the
agency allegedly did not provide him with a form that he needed in order
to file for unemployment benefits. Complainant has not shown that he was
somehow precluded from applying for unemployment benefits without being
provided a form by the agency. We note that complainant's application for
a disability retirement was ultimately rejected apparently for reasons
unrelated to the purported delay. Accordingly, the agency's dismissal
of claims (2) and (3) was proper and 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
June 7, 2002
__________________
Date