closed0120114035
01-25-2013
Robbie McGowan-Butler, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Robbie McGowan-Butler,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120114035
Hearing Nos. 550-2011-00386X, 550-2011-00387X, 550-2011-00388X
Agency Nos. E-04-0065, E-05-0012, ATF-2005-00098
DECISION
Complainant filed an appeal from the Agency's July 15, 2011, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination.
The record reflects the following chronology of events. On June 10, 2011, an EEOC Administrative Judge (AJ) issued an Order Returning Cases to Agency for Final Agency Decision in the matters referenced above. Specifically, the AJ stated "[C]omplainant's request to reinstate her hearing request and to resume proceedings before an Administrative Judge is DENIED. I conclude that the [C]omplainant failed to renew her request for a hearing within a reasonable time after all proceedings at the Merits Systems Protection Board (MSPB) ended in May 2008. The above referenced cases are returned to the Agency for issuance of a final agency decision on the record."
On July 15, 2011, the Agency issued a "final order". Therein, the Agency provided, in pertinent part, that "the [Agency] accepts the [AJ's] decision to dismiss Complainant's case for Complainant's failure to renew her request for a hearing in a timely manner and to return the case to the [Agency] for issuance of a final agency decision. A final [Agency] decision on the merits of the claim will be issued separately." (emphasis added). The Agency provided Complainant with appeal rights to the Commission's Office of Federal Operations (OFO) from this "final order."
The instant appeal followed.
ANALYSIS
We find that the Agency erred when it provided Complainant appeal rights to the Commission's Office of Federal Operations (OFO) in its July 15, 2011 "final order." The Agency should have issued a final decision on the merits and only then should have provided Complainant with appeal rights to OFO. Complainant's appeal from the Agency's July 15, 2011 "final order" constituted an interlocutory appeal. Commission regulations do not provide for interlocutory appeals of AJ rulings during the hearings process.
The record is devoid of evidence as to whether the Agency issued a final decision on the merits of the above referenced complaints. Based on the foregoing, we VACATE the Agency's July 15, 2011 final order and REMAND these matters to the Agency in accordance with the Order below.
ORDER
Within 60 days from the date this decision becomes final, the Agency shall take the following actions:
1) The Agency, to the extent it has not already done so, shall issue a final decision on the merits for the above referenced complaints with appeal rights to the Commission's Office of Federal Operations (OFO);
2) If the Agency issued a final decision on the merits while the instant appeal was pending before OFO, the Agency shall reissue the final decision on the merits to Complainant with appeal rights to OFO.
A copy of the final decision on the merits must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
January 25, 2013
Date
2
0120114035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114035