0120142928
01-14-2016
Abe K.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abe K.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 0120142928
Agency No. T-2013-024-MI-F-A
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated May 5, 2014, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Machine Welding Shop Supervisor at the Agency's Selfridge Air National Guard Base in Harrison Township, Michigan.
On July 19, 2013, Complainant contacted the EEO Counselor regarding a claim of discrimination. When the matter was not resolved informally, on November 5, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (52) when, on July 16, 2013, he was not selected for the position of Fabrication Supervisor.
The Agency issued its final decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) on the following grounds: (1) the Adjutant General of the state is empowered to employ and administer military technicians and decisions in this regard are not reviewable, in accordance with 32 U.S.C. � 709 (d) and (f)(4); and (2) the matter involved a military complaint of discrimination and 29 C.F.R. � 1614 does not apply.
Complainant was not provided with appeal rights in the Agency's final decision. Confused about the dismissal notice, Complainant filed a request for a hearing with the EEOC's Detroit Area Office. In August 2013, the Detroit Office responded to Complainant informing him of his right to appeal. Complainant filed the instant appeal.
On appeal, Complainant requested that the Commission reverse the Agency's dismissal. Complainant argued that he is an employee in a wage grade series as designated for federal civilian employee and the position for which he applied is also a wage grade series as designated for federal civilian employees. Complainant asserted that the Agency has failed to support its dismissal. Complainant also claimed that he was told when he was denied the promotion that he was only three years away from retirement and that they needed younger employees. As such, Complainant requested that the Commission reverse the Agency's dismissal. The Agency provided the Commission with the record for our review of the appeal.
ANALYSIS AND FINDINGS
In EEOC Petition No. 0420140014 (July 2, 2015), the Commission reiterated its long-standing position that dual-status technicians are considered both uniformed military personnel as well as federal civilian employees. We further reiterated that uniformed military personnel, of any branch of the armed forces, are not covered under Section 717 of Title VII. We also stressed our long-held position that dual-status technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from the individual's capacity as a federal civilian employee, and as a result the Commission has jurisdiction over those cases. The Commission reiterated that each National Guard dual-status technician complaint must be analyzed on a case-by-case basis to determine whether the Commission has jurisdiction. See Complainant v. Dep't of the Air Force (Nat'l Guard Bureau), EEOC Appeal No. 0120130247 (Sept. 28, 2015)
The record provided by the Agency included a "checklist" which appeared to have been used to determine whether Complainant's technician status should be considered military or civilian. There are merely check marks next to factors indicating "yes" or "no" without explanation. A copy of the vacancy announcement for the position in question does not shed any light on the nature of dual-status technician position. As such, we have no basis to rely upon to review the Agency's dismissal. In essence, the only argument provided by the Agency that the Commission lacks jurisdiction is solely due to the dual-status nature of the appointment. We find this argument alone to be unconvincing because, as the Agency itself concedes, dual-status technicians have both military and civilian characteristics, as well as federal and state characteristics. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Accordingly, we find that the Agency's dismissal of the complaint was not appropriate.
CONCLUSION
Accordingly, the Agency's final decision dismissing the complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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 (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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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