01A23583_r
03-26-2003
James D. Snyder, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
James D. Snyder v. Department of the Air Force
01A23583
March 26, 2003
.
James D. Snyder,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23583
Agency No. AL900021093
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 20, 2002, 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.
The record reveals that during the relevant time, complainant held
dual status as a civilian employee of the Luke Air Force Base and as a
Technical Sergeant of the United States Air Force Reserve.
On March 16, 2000, complainant filed a formal complaint claiming that
he was the victim of unlawful employment discrimination in reprisal
for prior EEO activity. The agency issued a final decision on August
10, 2001, dismissing the complaint for failure to state a claim.
Specifically, the agency found that the instant complaint was �very
confusing and complex� and contained claims that were �inappropriately
filed with this office.� Complainant filed an appeal from the agency's
decision. On appeal, the Commission vacated the agency's decision and
ordered the agency to meet with complainant to clarify his claims.
Snyder v. Department of the Air Force, EEOC Appeal No. 01A10260 (May
14, 2001).
In response to the Commission's Order, complainant met with the agency's
EEO Counselor in August 2001. A fair reading of the record reflects
that complainant claimed that the agency discriminated against him in
his civilian capacity following his efforts to have the agency address
and resolve a claim of sexual harassment that occurred while complainant
was on active military duty in Turkey. Specifically, complainant claimed
that while on military duty, complainant complained about incidents of
sexual harassment on behalf of a female third party to his superiors and
to the office of the US Air Force Inspector General. Complainant claimed
that in reprisal for this action, he was subjected to a continuing
pattern of harassment in his civilian position. Complainant enumerated
twelve incidents of harassment that occurred while he was working in his
civilian capacity including denial of promotions, denial of transfer,
assignment of janitorial duties, and verbal and physical threats.
On May 20, 2002, the agency issued a decision which is the subject of the
instant appeal, dismissing the complaint, again, for failure to state a
claim. Specifically, the agency determined that complainant's claims are
based upon activities that occurred in the �military arena.� Moreover,
the agency found that the conduct for which complainant claimed reprisal
was on behalf of a female third party who was on military status;
and that even if this female third party were a civilian employee,
complainant would still be unable to file an EEO complaint on her behalf.
On appeal, complainant contends that the agency has been discriminating
against him in his civilian capacity following his efforts to have the
agency address and resolve a military-based claim of sexual harassment.
Complainant further asserts that the coverage of Title VII's reprisal
clause extends to include opposition to discrimination even where the
opposition involves an employer not covered by the act.
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
Johnson v. Alexander, 572 F.2d 1219 (8th Cir.1978). Nevertheless,
the Commission has recognized the "dual status" of federal technicians
in the reserves, noting that those individuals are considered both
uniformed military personnel, as well as civilian employees. Brazill
v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1989).
However, the Commission has held that federal technicians are covered
by Title VII only when the alleged discriminatory action arises from
their capacity as civilian employees, and not when personnel decisions
affect their capacity as uniformed military personnel. Id. Accordingly,
it is necessary 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 his capacity as a uniformed
member of the military unit in question.
Under present Commission policy, claimed retaliatory actions which can
be challenged are not restricted to those which affect a term, condition,
or privilege of employment. Instead, a complainant is protected from any
discrimination which is reasonably likely to deter protected EEO activity.
See EEOC Compliance Manual Section 8, �Retaliation;� No. 915.003 (May 20,
1998), p. 8-15.
Moreover, a federal employee is protected not only for participation
in the EEO complaint process that applies to federal employees and
applicants for federal employment, but also for participation in other
complaint processes, whether or not they are based on Title VII, including
one designed to eradicate discrimination against military employees.
See Causus v. Department of the Air Force, EEOC Appeal No. 01920888
(April 15, 1992).
The Commission therefore determines that the alleged discriminatory
reprisal incidents affect complainant in his capacity as a civilian
employee. Specifically, complainant asserts that while in his civil
service status he was denied promotions and assignments, and was subjected
to harassing remarks and physical threats. Complainant's claims of
retaliation are within the scope of Title VII, and, as such, state
a claim. Accordingly, the agency's decision to dismiss the complaint
for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1),
was improper and is REVERSED. The complaint is REMANDED to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 (R0900)
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 (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
March 26, 2003
__________________
Date