0120103479
05-24-2012
Thomas J. Faugno, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Thomas J. Faugno,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103479
Agency No. 10-00183-01642
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated August 3, 2010, dismissing his complaint of 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for Medical Resident positions through the Agency's Graduate Medical Education (GME) Program, which is administered by the Joint Service Graduate Medical Education Selection Board (JSGMEB).
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), national origin (United States-attended a foreign school), and age (58) when: between December 16, 2009, and March 18, 2010, Complainant was not selected for Medical Resident positions in internal medicine or otolaryngology at the Navy Medical Center.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that the medical residency positions at issue are active duty positions. The Agency stated that the medical residency positions, for which Complainant applied through the JSGMEB, are designed to provide residencies for those medical school graduates who received scholarships from the military that require active duty enlistment. The Agency explained that once the intended recipients are placed, civilian applicants will be considered only if there are still outstanding openings; however, they must enlist for active duty to be placed. Thus, the Agency determined that non-selection for these residency positions is exclusively a military matter and outside the purview of EEOC regulations.
ANALYSIS AND FINDINGS
The Courts have held that unlike civilian employees, military personnel of any branch of the armed forces, including military personnel within the reserve components, are not covered under Title VII. See Turner v. Department of the Air Force, EEOC Appeal No. 0120120871 (April 18, 2012) (citing Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978)). EEOC Regulations also state that uniformed members of the military are not covered by EEOC Part 1614. 29 C.F.R. � 1614.103(d)(1).
In the present case, the record contains a copy of the application for the relevant medical residency positions entitled Department of Defense (DoD) Application for Graduate Medical Education (GME). The application notes that the applicant understands that his service obligation following schooling will be computed in accordance with applicable service regulations and Department of Defense Directives. The application further notes that the applicant will be made aware of his exact obligation prior to entering GME training.
The record also contains a Graduate Medical Education Supplement for the medical residency positions identified which states that if selected for the program, the individual's service obligation will be computed under Department of Defense instruction. The supplement notes that the applicant "understand[s] and agree[s] that following training, any tender of resignation or request for release from active duty on [his] part will be disapproved until the total period of obligated active service is completed, except for convenience of the Government or in the case of individual determined human circumstances."
The record also contains a Summary of Active Duty Obligation (ADO) for the Graduate Medical Education (GME) program dated June 23, 2009. The Summary of ADO verifies that the medical residency positions contain an active duty requirement for the residents selected via the program.
Additionally, we note that Complainant does not dispute that he had to be in an active duty status in order to occupy one of the positions at issue. In fact, in his formal complaint Complainant stated that he wanted to be returned to active duty and obtain a medical residency position.
Upon review, we find the evidence shows that the medical residency positions for which Complainant applied, through the JSGMESB required active military status and thus, do not fall within the EEOC's jurisdiction.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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 (S0610)
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 (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
May 24, 2012
__________________
Date
2
01-2010-3479
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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