01A14462_r
06-27-2002
Daniel C. Porter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel C. Porter v. United States Postal Service
01A14462
June 27, 2002
.
Daniel C. Porter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14462
Agency No. 4-D-280-0043-01
DECISION
On May 22, 2001, complainant filed a formal EEO complaint wherein he
claimed that he had been discriminated against on the bases of his race
(White), age (57), disability (unspecified) and in reprisal for his
previous EEO activity under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act of 1976, and the Rehabilitation Act
of 1973 when on September 22, 2000, his health insurance was terminated
as the agency had notified his insurance company to terminate the health
insurance coverage without notifying him in advance and giving him the
option of picking up the payments.
In its decision dated July 3, 2001, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(4), on the grounds that complainant
previously raised the matter at issue in an appeal to the Merit Systems
Protection Board (MSPB). The agency noted that complainant stated
that his health insurance coverage was terminated while he had appeals
pending with the MSPB, the Office of Workers' Compensation Programs,
and the agency's EEO process with regard to his termination from the
agency on September 8, 2000. The agency discussed the claim regarding
complainant's loss of health insurance, but it also stated that the
complaint concerned the appearance of two agency officials at his second
unemployment hearing to prevent him from receiving benefits.
On appeal, complainant maintains that the instant matter only concerns
the termination of his health insurance and it does not involve his
second unemployment hearing. Complainant states that the unemployment
hearing is addressed in a separate complaint, Agency No. 4-D-280-0038-01.
According to complainant, he has not raised the health insurance issue
before the MSPB, but rather only through the EEO process.
Initially, we observe that the agency erroneously referenced in
its decision the matter involving two agency officials appearing at
complainant's unemployment hearing to prevent him from receiving benefits.
This issue was not raised in the instant complaint. We observe that
this matter was raised in Agency No. 4-D-280-0038-01 and addressed by
the Commission in Daniel C. Porter v. United States Postal Service,
EEOC Request No. 05A20167 (February 13, 2002). The agency submitted as
part of the record the Initial Decision for complainant's MSPB appeal in
MSPB Nos. DC-0752-00-0128-I-2 and DC-0752-99-0805-B-2 (the MSPB issued
a consolidated decision). It is clear that the MSPB decision submitted
by the agency addresses complainant's alleged constructive suspension
and subsequent removal. We find that the termination of complainant's
health insurance is a matter that is inextricably intertwined with
complainant's removal. Accordingly, the agency's decision to dismiss
complainant's complaint on the grounds of a previous filing with the
MSPB 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 27, 2002
__________________
Date