Antoinette H. Johnson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.

Equal Employment Opportunity CommissionDec 29, 2004
01a45303 (E.E.O.C. Dec. 29, 2004)

01a45303

12-29-2004

Antoinette H. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.


Antoinette H. Johnson v. United States Postal Service

01A45303

December 29, 2004

.

Antoinette H. Johnson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area)

Agency.

Appeal No. 01A45303

Agency No. IJ-494-0024-04

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated July 14, 2004, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. In her complaint, complainant alleged that she was subjected

to discrimination on the bases of sex (female) and disability when on

June 23, 2004 she was denied reconsideration for rehire. For reasons

explained below, the Commission VACATES the final agency decision.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).

That section of the EEOC Regulations sets forth that an agency shall

dismiss a complaint that states the same claim that is pending before or

has been decided by the agency or Commission. The agency noted that on

many occasions prior to June 23, 2004 complainant requested reinstatement,

and pointed out the numerous occasions on which complainant was informed

by the Postal Service that she would not be rehired. The agency also

determined that in agency complaint no. 1J-494-0001-02 filed on November

3, 2001, complainant raised the same issue as the one she raised in the

instant complaint. However, the agency failed to substantiate the record

with evidence regarding this assertion. Consequently, the Commission

finds that the agency's dismissal on the grounds that the complaint

raises a matter previously decided by the agency was improper.

More importantly, however, the Commission finds that the agency failed

in its obligation to: (1) amend agency complaint no. 1J-494-0019-04 to

include the issue raised herein pursuant to 29 C.F.R. � 1614.106(d),

and (2) having failed to amend agency complaint no. 1J-494-0019-04 to

include a related claim, failed to consolidate complainant's complaints

pursuant to 29 C.F.R. � 1614.606. That section of the EEOC Regulations

states in relevant part that �[t]wo or more complaints of discrimination

filed by the same complainant shall be consolidated by the agency for

joint processing after appropriate notification to the complainant.�

On May 5, 2004, complainant filed formal agency complaint

no. 1J-494-0019-04 in which she alleged discrimination when the agency

returned to duty a male employee who had been placed on administrative

leave for injuring a co-worker, whereas she was terminated after the

agency determined that she was a potential hazard to others. That case

recently came to the Commission on appeal after the agency had dismissed

the complaint. The Commission reversed the final agency decision and

remanded the matter for further processing. See Johnson v. USPS, EEOC

Appeal No. 01A44040 (Sept. 21, 2004), request to reconsider denied,

EEOC Request No. 05A500139 (Nov. 17, 2004).

In the instant complaint, complainant raised a claim related to that of

complaint No. 1J-494-0019-04. Here, complainant states that the letter

she received from the Postal Service denying reconsideration for rehire

was discriminatory because she �was not removed for cause. [She] was

removed because of a disability.... Others outside of [her] protected

status who were removed for cause were subsequently rehired.� See EEO

Complaint for Discrimination in the Postal Service, No. 1J-494-0024-04,

filed July 6, 2004. Comparing this complaint with agency complaint

no. 1J-494-0019-04, it is clear that the claims are inextricably

intertwined. At the core of both complaints is complainant's belief

that (1) she was discriminatorily terminated when the agency determined

that she was a potential hazard to others, and (2) she continues to be

wrongfully denied reinstatement.

The agency erred by failing to amend the earlier complaint to include

the related claim at issue in the instant complaint and then by failing

to consolidate the two complaints. Accordingly, the Commission VACATES

the final agency decision and REMANDS the complaint to the agency for

joint processing with agency complaint No. 1J-494-0019-04 in accordance

with this decision and the ORDER below.

ORDER (E0900)

The agency is ordered to consolidate and investigate the instant complaint

together with agency complaint No. 1J-494-0019-04 in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded complaint within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

December 29, 2004

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations