01990433
03-21-2000
David Shipley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David Shipley v. United States Postal Service
01990433
March 21, 2000
David Shipley, )
Complainant, )
)
v. ) Appeal No. 01990433
) Agency No. 4F-920-0129-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Upon review, we find that the agency properly dismissed complainant's
complaint due to untimely EEO contact and/or for failure to state a
claim.<1> See 29 C.F.R. � 1614.105(a)(1); 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(1)). In his complaint, complainant alleged that he was
discriminated against based on physical disability (post traumatic
stress disorder/chronic asthma) when on March 26, 1993, he was forcibly
terminated via disability retirement. Complainant also alleged that from
January 1986 to present: he was subjected to harassment; his OWCP claims
were denied, reduced, or unresolved; the agency wrongfully disclosed
information pertaining to his mental disability to the Department
of Labor resulting in successful efforts to frustrate his rights to
disability compensation; and the agency zealously contested all of his
OWCP claims for the sole purpose of insuring that no compensation would
be paid to him.
With regard to complainant's constructive discharge claim, we find that
his EEO contact on March 20, 1998, was beyond the 45-day time limit
set by the regulations. Although complainant contends a continuing
violation on appeal in that he was subjected to harassment since 1986, he
indicates no incident other than this resignation. Furthermore, we find
complainant's constructive discharge claim is an isolated incident, and it
is not related to the alleged discrimination involving his OWCP claims.
Thus, we find that the constructive discharge claim does not constitute
a continuing violation. See Valentino v. United States Postal Service,
674 F.2d 56 (D.C. Cir. 1982); Clark v. Olinkraft, Inc., 556 F.2d 1219
(5th Cir. 1977), cert. denied, 434 U.S. 1069 (1978).
With regard to complainant's claim concerning his OWCP claims, we
note that the agency erroneously indicated in its final decision that
they occurred on March 26, 1993, and in March 1998. Upon review of the
complaint, we find that complainant clearly alleged that these incidents
occurred since his employment with the agency through to present.
Nevertheless, we find, upon review, that this claim failed to state
a claim. In his complaint, complainant, specifically, alleged that his
OWCP claims were allegedly denied/reduced/unresolved by the Department of
Labor because the agency zealously controverted all of his OWCP claims.
The Commission has held that it is an agency's obligation to controvert
an OWCP claim where there is a dispute as to the employee's entitlement.
Hall v. Department of Treasury, EEOC No. 01945595 (February 23, 1995).
See also Lau v. National Credit Union Administration, EEOC Request
No. 05950037 (September 8, 1994) (a claim that the agency presented
misleading or false information in response to a claim for Office of
Workers' Compensation Programs benefits must be raised in the workers'
compensation forum). Accordingly, the agency's final decision is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 21, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.