0120062103
01-23-2009
Kurt T. Klassen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kurt T. Klassen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200621031
Agency No. 4F-926-0283-04
Hearing No. 340-2005-001719X
DECISION
The record indicates that complainant filed his complaint, dated December
29, 2004, which was later amended, alleging discrimination based on
disability (left arm and major depression) and in reprisal for prior
EEO activity when:
(1) On August 18, 2004, his health benefits were retroactively
terminated without notice and he never received a Notice of Termination
of Enrollment, including the Standard Form 2810, Notice of Change in
Health Benefits Enrollment;
(2) The agency's policy of terminating the health benefits enrollment
periods of individuals with known disability(s) who were in a LWOP status
was discriminatory;
(3) During his EEO Request for Counseling for the instant complaint,
an identified Dispute Resolution Specialist did not issue him a Notice
of Right to File and a report of the results of his inquiries within
30 days of contact with EEO; and on December 16, 2004, he received the
final interview;
(4) His Postmaster did not respond to his written request for reasonable
accommodation dated October 6, 2004;
(5) The Santa Ana Personnel Office did not respond to his October 10,
2004 request to be re-enrolled in the FEHB (Federal Employee Health
Benefits Program);
(6) An identified Spurgeon Station Manager failed to grant his repeated
requests for sick leave for pay periods 22 through 26, 2004 (October 2,
through December 3, 2004);
(7) On November 24, 2004, he received a Standard Form 2819, Notice of
Conversion Privilege letter, from Human Resources regarding notifying him
that his Group Life Insurance Program was terminated on October 19, 2002;
(8) On December 1, 2004, he receive a letter from an identified Customer
Support Service (CSS) advising him that she had been researching the
situation and attempting to correct the errors that were made in his
leave status and that she had submitted paperwork requesting that the
adjustments which had already been made for pay periods 19 and 20 included
modifications to his formal pay status in these pay periods;
(9) On December 16, 2004, he received the Final Interview for the instant
complaint from the Dispute Resolution Specialist and he discovered that
his Acting Manager/the Postmaster wrongfully denied his request to have
his FEHB enrollment reinstated due to the erroneous determination that
he was not in a pay status even though he had been paid sick leave dated
December 8, 2004;
(10) The Dispute Resolution Specialist also reported in his Final
Interview that an identified individual was contacted and management's
response to his inquires relative to the Minneapolis Accounting Service
Center (ASC) sends the cancellation notice directly to the employee
with a copy to the Personnel Office. The Santa Ana District Management
erroneously took the position that it is not their responsibility to
issue complainant the Standard Form 2810, and denied the issuance of
the form to him;
(11) The Manager, Personnel Services, failed to reinstate his health
benefits retroactive to May 13, 2004, and she failed to grant his request
for reasonable accommodation; and,
(12) The Manager, Personnel Services, failed to issue him a Standard Form
2810 and he could not apply for a private health insurance conversion
contract without the form.
On June 3, 2005, the agency issued a partial dismissal of the complaint
dismissing claims (1) - (3), (5), (7), (9), and (10) and accepting claims
(4), (6), (8), (11) and (12)2 for investigation.
With regard to claims (1), (2), (5), and (7), the record indicates
that the alleged incidents involved the termination/reinstatement of
complainant's health benefits enrollment on May 14, 2004, and a Notice
of Conversion Privilege letter. The agency stated that the policy of
terminating or enrollment of health benefits or Notice of Conversion
Privilege notification, at issue, were under the jurisdiction of the
Office of Personnel Management (OPM), and not the agency. Thus, we
find that the subject matters failed to state a claim, and the agency
properly dismissed the same pursuant to 29 C.F.R. � 1614.107(a)(1).3
With regard to claims (3), (9), and (10), we find that these claims
are properly dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). Furthermore, we also find that claims (9)
and (10) failed to state a claim since they merely involved new evidence
complainant purportedly discovered during the complaint process concerning
his health benefits, described above.
The record indicates that after completion of the investigation of
the accepted claims, complainant initially requested a hearing before
an EEOC Administrative Judge (AJ) but later withdrew the request.
Accordingly, on November 30, 2005, the AJ issued an order of dismissal
but did not direct the agency to issue a final agency decision.
Under the regulations, the agency nevertheless issued its January 10,
2006 decision to which complainant timely appeals. Recognizing his
inadvertent error, on January 12, 2006, the AJ issued his amended
order of dismissal directing the agency to issue its final decision.
Accordingly, the agency issued its February 17, 2006 amended decision.
Despite complainant's contentions on appeal, we find we see no reason
to exclude the agency's February 17, 2006 decision since there are
no specific provisions under the regulations prohibiting the agency's
issuance of its amended decision under the circumstances. Furthermore,
we note that complainant properly submits a number of appeal briefs
after his receipt of the February 17, 2006 decision. Accordingly,
we will address both agency decisions herein forth.
The record indicates that during the relevant time period at issue,
complainant had not been performing any work function for at least one
year since March 2003, due to his medical conditions. On May 14, 2004,
complainant's health insurance was cancelled because he had been in a
LWOP status for more than 365 consecutive days. On July 8, 2004, the
agency provided complainant with a Standard Form 2810 (Notice of Change
in Health Benefits Enrollment), originating from the agency's Personnel
Payroll Center, informing him of the cancellation. On August 23, 2004,
complainant submitted a PS Form 3971 requesting one hour of sick leave
to be paid to him on August 24, 2005, and on six other specified future
dates. Complainant then sent a letter to the agency's Santa Ana Personnel
Office on September 2, 2004, requesting to be re-enrolled in the FEHBP
due to his return to a pay status on August 24, 2004. On October 6,
2004 and November 29, 2004, complainant sent a letter to the Postmaster
requesting to have his FEHB enrollment reinstated retroactive to the
May 14, 2004 cancellation date as a reasonable accommodation.
With regard to claims (11) and (12), upon review, we agree with the
agency's finding that they failed to state a claim. The record clearly
indicates that the OPM, and not the agency, had the jurisdiction over
the policy of terminating/reinstating health benefits enrollments.
With regard to claims (4), (6), and (8), we note that the alleged
incidents involved complainant's submission of his sick leave requests
and his October 6, 2004 letter to the Postmaster. After a review of
the record, assuming arguendo that complainant had established a prima
facie case of discrimination, we find that the agency has articulated
legitimate, nondiscriminatory reasons for the alleged incidents.4
Specifically, the Postmaster stated that he received complainant's
letter, described in claim (4), but he was not authorized to reinstate
complainant's health benefits eligibility and he sent complainant's
request to the ASC for consideration. The ASC denied complainant's
request because he had not worked at least four months during 2004.
The Postmaster indicated that he also forwarded complainant's leave
requests to the Spurgeon Station Manger. The record indicates that the
Postmaster forwarded complainant's letter to the CSS and directed her
to respond such. The CSS, then, took actions concerning complainant's
concerns and sent him her response letter, described in claim (8),
as directed by the Postmaster.
With regard to complainant's sick leave requests, described in claim
(6), the Spurgeon Station Manger indicated that he did not remember
the incident because leave administration was handled by initial-level
supervisors. He also added that he, personally, never denied complainant
sick leave because complainant only worked 11/2 days while he was
complainant's manager.5
With regard to the December 1, 2004 letter, described in claim (8), the
CSS stated that the Postmaster, upon receipt of complainant's October 6,
2004 letter, assigned her to respond to complainant's concerns. The CSS
indicated that in her letter, she merely informed complainant that she
researched the situation and attempted to correct the errors concerning
his leave status.
The Commission does not address in this decision whether complainant is
a qualified individual with a disability. We note that complainant has
not claimed that he was denied a reasonable accommodation in order to
perform the essential functions of his position as a Carrier Technician
nor has he claimed that he was required to perform his duties beyond
his medical restrictions. Despite complainant's claim, we note that
the agency's modification of leave policies, including providing him
with additional leave, and reinstating his health benefits does not
constitute a reasonable accommodation under the regulations since it does
not concern his actual work performance. After a review of the record,
we find that complainant failed to show that any agency actions were
motivated by discrimination.
Accordingly, the agency's decision finding no discrimination with regard
to claims (4), (6) and (8) and dismissing the remaining claims of the
complaint 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
1/23/09
__________________
Date
1This case has been re-designated with the above-referenced appeal
number.
2 In its final decision decision, the agency identified accepted claims
(4), (6), (8), (11) and (12) as issues 1, 2, 3, 4, and 5, respectively.
3 Although the agency also dismissed claims (1) and (7) on the alternative
grounds due to untimeliness and claims (1) and (5) for stating the same
claim which had previously decided by the agency, we need not discuss
such since its dismissal was affirmed for failure to state a claim.
4 We note that the agency improperly indicated in its decision that
these claims were untimely, failed to state a claim, and/or stated the
same claim that was previously decided by the agency.
5 The record indicates that during the relevant time period at issue,
complainant filed a grievance on December 27, 2004, which was subsequently
resolved in Step B Decision dated June 21, 2005. Therein, management
agreed to "correct the disputed pay issue, if not already done so,
which appears to be only one hour of sick leave as of pay period 26/04."
Management also agreed to timely process complainant's application for
health benefits upon his submission of the same.
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0120062103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120062103