0120151121
03-02-2017
Candice B.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Candice B.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120151121
Agency No. T-2014-009-MT-A-S
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated December 15, 2014, dismissing her 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.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant at the Agency's Joint Force Headquarters facility in Montana. Complainant indicated that she was a GS-11 Intelligence Operations Specialist and had sought a GS-12 position. On February 13, 2014, Complainant indicated that she was not permitted to apply or compete for a GS-12 position. The Agency selected a male for the GS-12 position over Complainant.
Believing she was subjected to discrimination, Complainant contacted the Agency's EEO Office. On May 14, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when, she was denied the opportunity to apply for a GS-12
The Agency provided Complainant with information on the EEO complaint process including appeal rights. Complainant signed the forms on April 4, 2014 and again on May 16, 2014. On May 23, 2014, the Agency stated that it had accepted Complainant's EEO complaint. Subsequently, on June 19, 2014, the Agency issued a Notice of Dismissal. The Agency dismissed the complaint for failure to state a claim summarily stating that the military technicians and decisions regarding such positions are not reviewable. The Agency indicated that Complainant's complaint would be processed in the military complaint process.
On July 8, 2014, Complainant emailed the Agency regarding her "notice of dismissal" and she was informed that the complaint would be investigated by the state. Complainant emailed the Agency again in December 2014, seeing information on her complaint. By letter dated December 15, 2014, the Agency responded by stating that it had dismissed the complaint and that it would be investigated by the state as a "military complaint." The Agency restated that her civilian EEO complaint had been dismissed. For the first time, the Agency provided Complainant with appeal rights to the Commission in its dismissal determination.
This appeal followed. Complainant asserted that the Agency's dismissal was not appropriate. In response to the appeal, the Commission mailed the Agency a letter dated February 25, 2015, informing it of Complainant's appeal. The Agency failed to respond.
ANALYSIS AND FINDINGS
The Agency dismissed the entire complaint finding that allegations from dual-status technicians are irreducibly military in nature, and as a result the Commission lacks jurisdiction and the federal sector EEO process under 29 C.F.R. � 1614 does not apply. The Agency asserts that instead the complaint should be processed in the state's equal opportunity process. As stated above, the Agency's dismissal merely stated that the matter was not within EEOC jurisdiction.
Section 717 of Title VII explicitly covers personnel actions affecting employees or applicants for employment in civilian positions within military departments. 42 U.S.C. � 2000e-16(a-b).5 EEOC Regulations thus provide that while the federal sector EEO process does not apply to uniformed members of military departments, the process does apply to civilian employees in military departments. See 29 C.F.R. �� 1614.103(b)(1), (d)(1).
The Commission has long recognized the unique "dual-status" of technicians in the National Guard, noting that those individuals are considered both uniformed military personnel as well as federal civilian employees. The Commission first addressed jurisdiction over dual-status technician in 1984, where we agreed with the general rule that uniformed military personnel, of any branch of the armed forces, are not covered under Section 717 of Title VII. Commission Decision No. 84-4, 1984 WL 23401 (May 16, 1984). However, we noted that a dual-status technician is considered both a uniformed military member as well as a federal civilian employee. As a result, we found 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. We found that it was necessary for us to review the facts in each case to determine whether the alleged discrimination took place in the context of the individual's capacity as a federal civilian employee or in the capacity of a uniformed member of the military.
In considering our jurisdiction over complaints from dual-status technicians, we examine whether the alleged discriminatory event arose while the technicians were in their federal civilian capacity or when they were in their military capacity, such as during the monthly drill or when called to active duty. If there is a dispute as to whether the alleged discrimination arose during the dual-status technician's military or civilian capacity, this is a factual determination that must be made on a case-by-case basis by the Commission. See Petitioner v. Dep't of the Air Force (Nat'l. Guard Bureau), EEOC Petition No. 0420140014 (July 2, 2015).
However, upon review of the record, the Agency failed to provide any evidence beyond stating in its FAD that the Commission lacked jurisdiction. Thus, the Agency has failed to substantiate the bases for its final decision. See Contreras v. Dep't of the Army (Nat'l Guard Bureau), EEOC Appeal No. 0120131476 (June 21, 2013); see also Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). We find that the Agency's dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E1016)
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 was issued. 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 was issued, 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 (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
March 2, 2017
__________________
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.
2 We note that Complainant filed an appeal to the Commission based on the address provided with the Agency's decision on January 12, 2015. The appeal was returned to Complainant as undeliverable. A review of the Agency's decision dated December 15, 2014, we find that the Agency provided Complainant with the wrong address for the Commission. Complainant resubmitted her appeal on February 4, 2015. Based on the Agency's error, we find that Complainant's appeal was filed in a timely manner.
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