01a45303
12-29-2004
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