Rachelle D. Johnson, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 7, 2007
0120063810 (E.E.O.C. May. 7, 2007)

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

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0120063810

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120063810