James W. Noce, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 10, 2001
01A03716 (E.E.O.C. Apr. 10, 2001)

01A03716

04-10-2001

James W. Noce, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


James W. Noce v. U.S. Department of the Army

01A03716

April 10, 2001

.

James W. Noce,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A03716

Agency No. AFDEFO-0003-A0-420

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated April 7, 2000, dismissing his complaint of unlawful

employment discrimination brought pursuant to the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant, a non-dual status military technician with the Army

Reserve, filed an EEO complaint claiming that the agency violated the

ADEA when he was forced to retire under the newly enacted provisions

of 10 U.S.C. � 10218.<1> Complainant contends that these provisions,

which mandate separation of all non-dual status military technicians<2>

who are eligible for an unreduced retirement

annuity, violate the ADEA and that his removal under these provisions

constitutes age discrimination.

In its decision, the agency dismissed this complaint on the grounds of

failure to state a claim, finding that the provisions of 10 U.S.C. � 10218

were lawfully mandated by Congress, and that complainant was properly

separated under these provisions. Furthermore, the agency also found

that complainant's challenge of the legality of this Congressionally

enacted statutory amendment is not within the purview of the Commission's

regulations, and dismissed the complaint for this reason as well.

Complainant now appeals the agency's decision.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. The Commission has consistently held that complaints

challenging statutorily created exceptions to the ADEA fail to state a

claim. See Campbell v. Department of Justice, EEOC Request No. 05960550

(April 17, 1997). Moreover, in Brumbaugh v. Department of the Army, EEOC

Appeal No. 01A05531 (March 29, 2001), the Commission specifically found

that the provisions of 10 U.S.C. � 10218 create a statutory exception to

the ADEA, permitting the agency to implement the mandatory separation

of non-dual status military technicians who are eligible for unreduced

retirement annuities, without resulting in an actionable claim under

the ADEA.

Accordingly, we find that the agency properly dismissed the instant

complaint for failure to state a claim, pursuant to 29 C.F.R. �

1614.107(a)(1), and we AFFIRM the agency's decision in this case.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

April 10, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On October 5, 1999, Congress enacted the National Defense Authorization

Act for Fiscal Year 2000 (Public Law 106-65), which amended Chapter

1007 of Title 10, United States Code, by adding 10 U.S.C. � 10218 as a

new section.

210 U.S.C. � 10217 defines a non-dual status military technician as

a civilian employee of the Department of Defense hired as a military

technician before the date of enactment of the National Defense

Authorization Act for Fiscal Year 1998, who as of the date of the

enactment of that Act, is not a member of the Selected Reserve, or after

such date ceased to be a member of the Selected Reserve.