0120063810
05-07-2007
Rachelle D. Johnson, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Rachelle D. Johnson,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120063810
Agency No. 8V0J06006
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 8, 2006, 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.
During the relevant period, complainant was employed as an Administrative
Support Assistant at a Mississippi facility of the agency and held
active membership as a Senior Airmen in the military reserve. Per a
Notification of Personnel Action, complainant occupied her position as
an Air Reserve Technician (ART) and her position was contingent upon
her maintaining active membership in the reserve as an ART.
Complainant initiated contact with an Equal Employment Opportunity (EEO)
Counselor and, subsequently, filed a formal EEO complaint alleging that
she was subjected to hostile work environment harassment on the bases
of race (African-American) and sex (female) when an Operations Officer
(S1) stated: "I was told you and [a coworker] were not getting along
and if I hear one more negative thing about you, I would make sure that
you are removed. I was told that all you do is flirt with the guys and
do not do any work." Complainant stated that S1 was not in her chain of
command and reprimanded her while she worked in her civilian position or,
at the least, while she served in two capacities - civilian and military.
Complainant asserted that S1 threatened her employment.
The agency dismissed complainant's complaint for failure to state a
claim finding that complainant was in active duty military status on
February 17, 2006, the date she alleged that S1 reprimanded her, and,
thus, the Commission lacks jurisdiction. In addition, the agency found
that complainant filed her formal complaint in an untimely manner.
Specifically, the agency stated that complainant received her Final
Interview on March 30, 2006 and hand-delivered her formal complaint on
April 17, 2006, which is outside of the statutory time-frame. The instant
appeal from complainant followed.
In the past, "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." See
Gordon v. Dep't of the Air Force, EEOC Appeal No. 01953368 (February 13,
1996) (citing Brazil v. National Guard Bureau, EEOC Appeal No. 01891698
(June 22, 1989)). 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.
With regard to complainant's claim, it appears that she fits into the
"dual status" category and the Commission could review the manner in
which S1's action affected her civilian position and whether it was
based on discriminatory factors. However, we find that complainant's
complaint should be dismissed on timeliness grounds.
The agency also dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2) and 106(b), finding that complainant did not file her
formal complaint of discrimination within the 15-day limit provided by
regulations. The record indicates that complainant received the Notice
of Right to File Discrimination Complaint on March 30, 2006, but did
not file her formal complaint until April 17, 2006, more than fifteen
days later. On appeal, complainant has not offered any explanation for
this delay that would justify extending the regulatory filing period.
Accordingly, after a careful review of the record, we find that the
complaint is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
We AFFIRM the agency's decision dismissing the complaint.
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 (S0900)
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 (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
May 7, 2007
__________________
Date
2
0120063810
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120063810