0120064552
11-13-2007
Cheryl Booker, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Cheryl Booker,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200645521
Agency No. 8Z0J05014F06
Hearing No. 360-2005-00325X
DISMISSAL OF APPEAL
On July 13, 2006, complainant filed the instant appeal, concerning her equal employment opportunity (EEO) complaint claiming unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On December 3, 2004, complainant initiated EEO Counselor contact regarding claims of discrimination based on race. Informal efforts to resolve complainant's concerns were unsuccessful. On January 18, 2005, complainant filed a formal complaint.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. The AJ determined that by letter dated November 25, 2005, complainant requested the dismissal of her formal complaint without prejudice, on the grounds that the subject of the formal complaint could be appealed to the Merit Systems Protection Board (MSPB). The AJ was concerned that complainant did not understand the complexities associated with processing a mixed-case appeal, and the AJ doubted that complainant had standing to pursue an appeal to the MSPB. Consequently, the AJ required complainant to explain the basis of her standing to appeal to file an appeal with the MSPB or, alternatively, to state that she: (1) elected to proceed with the hearing, (2) requested dismissal with prejudice, or (3) chose to withdraw her request for a hearing.
After providing these options to complainant, the AJ stated that complainant again requested "dismissal." The AJ construed complainant's response dated December 5, 2005 to be a withdrawal of her prior hearing request, and in his December 7, 2005 decision, ordered that the formal complaint be "returned to the Agency for issuance of a final decision . . . ."
On February 3, 2006, the complainant filed an appeal with the Commission. Complainant argued that the agency "failed to comply with the December 7, 2005 order by the [AJ] which in part stated 'If the agency fails to issue a final order, you have the right to file your own appeal any time after the conclusion of the agency's 40-day period for issuing a final order.'" Complainant requested "to have the case appealed to the Merit System Protection Board, which has jurisdiction in mixed-case issues." Commission records reveal that the appeal was subsequently closed, when complainant notified the Commission that she wanted to withdraw her appeal in order to file a civil action in U.S. District Court. 2
However, on July 13, 2006, complainant filed the instant appeal with the Commission. Once again, complainant argues that the agency has not complied with the AJ's December 7, 2005 order to issue a final order "within forty days." Complainant requests that the Commission issue sanctions against the agency, and expresses her desire to file a civil action.
In response to the instant appeal, the agency submitted a statement dated August 31, 2006. Therein, the agency argues that complainant's appeal should be dismissed because "it is untimely in relation to the decision of the AJ, and premature in relation to a final agency decision." The agency notes that the AJ's December 7, 2005 ruling is "internally inconsistent and confusing." The agency acknowledges that the body of the AJ's ruling directs the agency to issue a final decision, the AJ's accompanying "Notice to Parties" states that the agency is required to issue a final order "within forty days of receiving this decision and the hearing record. (emphasis in the original) " Further, the agency notes that complainant was advised of her right to file an appeal any time after the expiration of the agency's 40-day period for issuing a final order. The agency contends that it interpreted the AJ decision as an order to issue a final agency decision.3 Nonetheless, the agency contends that complainant understands her appellate rights, because she had previously filed an appeal, and withdrew it in an effort to proceed in federal court. The agency asserts that its August 31, 2006 decision explicitly contains her rights, and provides her an opportunity to file an appeal from that decision.
Upon a review of the record, the Commission agrees with the rationale set forth by the agency on appeal. The Commission acknowledges that the AJ's order described in the attached "Notice to Parties", requires the agency to issue a final order within forty days, and informs complainant that she could file an appeal after the expiration of the forty days. Nevertheless, we determine that the AJ specifically stated in the body of the decision: "it is ORDERED that this case is dismissed and the complaint returned to the agency for issuance of a final decision . . . ." The instructions set forth in the AJ's attachment do not reflect the circumstances before the AJ (i.e. there was no "decision and hearing record" for the agency to fully implement or not implement.) and appear to have been erroneously included.
Complainant could not have filed the instant appeal (July 13, 2006) to challenge the agency's final decision, as that final decision was issued on August 31, 2006, weeks after the instant appeal was submitted. Moreover, all of complainant's statements on appeal address the agency's purported "defiance" of the AJ's order to issue a decision and express an intention to file a civil action, rather than challenging the merits of the agency's finding of no discrimination. Moreover, Commission records indicate that complainant previously appealed the AJ's decision, in February 2006, then withdrew the appeal to file a civil action. Complainant apparently did not pursue the matter in federal district court, but instead attempted to file the instant appeal with the Commission, again before a decision was issued by the agency. Consequently, it would be inappropriate to consider the agency's decision at this time.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, complainant's appeal is hereby DISMISSED.
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
November 13, 2007
__________________
Date
1 Due to a new data system, the case has been redesignated with the above referenced appeal number.
2 The appeal was assigned EEOC Appeal No. 01A61990, and was administratively closed on April 28, 2006.
3 Further, the agency asserts that it has complied by including a final agency decision also dated August 31, 2006.
??
??
??
??
2
0120064552
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
2
0120064552