Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJul 11, 2014
0120141034 (E.E.O.C. Jul. 11, 2014)

0120141034

07-11-2014

Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120141034

Agency No. (MC) 13-67856-02757

DECISION

On January 20, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 13, 2013, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Marine Corps Junior Reserve Officers' Training Corps (MCJROTC) Instructor (Marine Instructor) at Okkodo High School in Guam.

On September 3, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability when on July 1, 2013, it did not extend or recertify him as a Marine Instructor, which resulted in his separation.

MCJROTC is a military instruction program in high schools. The Secretary of the Navy has authorized the Commandant of the Marine Corps to establish MCJROTC units throughout the United States, and includes Guam.

Agency regulations require the following: the leadership education staff of a MCJROTC unit must be comprised of retired Marine Corps officers and retired Marine Corps noncommissioned officers (SNCO) in receipt of retired/retainer pay who are employed by the school. Each unit is required to maintain a minimum staffing of one Senior Marine Instructor and one Marine Instructor.

To serve as an MCJROTC instructor, an individual must be certified by the Commanding General, Marine Corps Training and Education Command. Certification as a Marine Instructor requires that the individual be a retired SNCO or warrant officer with at least 20 years of active duty who does not possess a bachelor's degree and is physically qualified according to Marine Corps standards.

Agency regulations require the school to pay a JROTC instructor, at a minimum, the difference between the retired or retainer pay and the active duty pay and allowances the JROTC instructor would receive if ordered on active duty. While the school pays the salary, the government reimburses it at the rate of one-half the difference between instructor retirement or retainer pay and active duty pay and allowances.

Instructors are required to maintain traditional Marine Corps standards of decorum and personal appearance, including wearing of the Marine Corps uniform during the school day and during all MCJROTC related co-curricular and extracurricular activities such as drill and marksmanship competitions, community service, and field trips. Instructors must maintain haircut, height and weight standards.

The Marine Corps Training and Education Command develops standardized curriculum and supporting materials. It also plans and manages the recruitment of instructors, and assists in the assignment and hiring of them - a facilitative function. The final decision on hiring rests with the school.

By email dated April 25, 2013, the Assistant Program Director, Marine Corps Training and Education Command relayed his Director's decision to Complainant not to extend or recertify him as a Marine instructor past his current school year date of work. The Assistant Program Director wrote that in the absence of Complainant's failure to obtain a detailed wellness plan, evaluation and prognosis from a medical doctor concerning his return to duty after a stroke, the Director had no recourse other than to believe his medical condition rendered him unable to continue in his current position. The Assistant Director also cited to an April 2013, inspection of the Okkodo High School MCJROTC unit by Complainant's Director, Region Four, United States Marine Corps MCJROTC. In his report the inspecting Director noted a number of issues. They included that Complainant had a very distinct limp, limited use of his right arm, was overweight, engaged in broken and repetitive conversation, got confused several times during the day, was argumentative for a short time and displayed anger with the inspector, and was sarcastic with the cadets and shouted at them and used veiled threats. The inspector also identified problems with Complainant's implementation of the program, e.g., not fielding two platoons for armed and unarmed drill, apparently limiting the scope of his duties to some teaching and drills, and administering push-ups as punishment when this was not authorized.

The Agency dismissed Complainant's complaint for failure to state a claim. It reasoned that Complainant was an employee of the school, not the Agency.

On appeal, the parties make no argument.

ANALYSIS AND FINDINGS

As a general rule, uniformed military personnel are not covered by the 29 C.F.R. Part 1614 administrative EEO complaint process which is designed for use by civilian federal employees and applicants for civilian federal employment. Complainant v. Department of the Air Force (National Guard Bureau), EEOC Appeal No. 0120122088 (April 25, 2014), citing Dickens v. New Jersey National Guard, Charge No. 031792306 (May 16, 1984); 29 C.F.R. � 1614.103(d)(1).

A generally analogous situation to this case regards National Guard dual status technicians, who perform both as federal civilian employees and in a military capacity. The EEOC has found that when the allegedly discriminatory action arises from the individual's uniformed military capacity, the 29 C.F.R. Part 1614 process does not apply. See id.; Birkle v. Department of the Air Force (National Guard Bureau), EEOC Request No. 05931001 (July 15, 1994).

MCJROTC, as set forth in Agency regulations, is the official designation of military instruction in leadership, character, and citizenship conducted and sponsored by the U.S. Marine Corps. Complainant's job was to implement the curriculum for this. His certification as a Marine Instructor by the Commanding General, Marine Corps Training and Education Command required that he be a retired SNCO or warrant officer, and be physically qualified according to Marine Corps standards. His minimum pay is based on what would be his active duty pay and allowances. Instructors are required to maintain traditional Marine Corps standards of decorum and personal appearance, including wearing of the Marine Corps uniform during the school day and during all MCJROTC related co-curricular and extracurricular activities such as drill and marksmanship competitions, community service, and field trips. Instructors must maintain a haircut and height and weight standards.

In sum, we find that the alleged discrimination arose in the context of Complainant's military-related duties even though he was no longer on active duty, rather than as part of some civilian employment by the Agency. Moreover, it appears that Complainant was also an employee of the Okkodo High School, a non-federal entity. Accordingly, we find that EEOC's federal sector regulations do not cover Complainant's complaint.

The Agency's decision to dismiss Complainant's complaint 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

July 11, 2014

__________________

Date

2

0120141034

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120141034