0120122152
10-30-2015
Stanton S.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stanton S.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
(National Guard Bureau),
Agency.
Appeal No. 0120122152
Agency No. NGB-T2011004WYFA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 22, 2012, dismissing his complaint of unlawful employment discrimination alleging a violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a technician at the Agency's Wyoming Air National Guard facility in Cheyenne, Wyoming.
On October 14, 2010, Complainant contacted an Agency EEO counselor. When the matter could not be resolved informally, on December 22, 2010, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of age (60) when, on August 30, 2010, Complainant received a letter, dated August 18, 2010, notifying him of his termination as a technician.2 The record shows that Complainant believed he had been improperly required to retire from his military position with the Air National Guard, resulting in the concurrent termination of his civilian technician position. Complainant believed that he should have been entitled to remain in the National Guard until his 62th birthday due to the April 2007 National Defense Appropriation Act change in mandatory retirement age.
On March 22, 2012, the Agency issued its final decision dismissing Complainant's termination claim concerning his technician position. In regards to Complainant's civilian technician position termination, the Agency asserted that the federal law requires civilian personnel employed pursuant to 32 U.S.C. 709(a) to maintain membership in the National Guard as a condition of continued employment and requires prompt termination upon loss of membership in the Army or Air National Guard. Since Complainant's termination from his technician position was required by law once he was separated from his National Guard service, the Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal by Complainant followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has recognized that National Guard technicians are covered by the employment discrimination statutes, including the ADEA, when the alleged discrimination arises from their capacity as federal civilian employees. However, when the alleged discrimination arises from the complainant's capacity as uniformed military personnel, he or she does not state a viable claim in the 29 C.F.R. Part 1614 EEO complaint process. See Birkle v. Dep't of the Air Force, EEOC Request No. 05931001 (July 15, 1994). Specifically, in Birkle, the Commission found that the decision to deny the Complainant's re-enlistment was a military matter which the Commission had no authority to address, and for this reason, further determined that it would also not address the Complainant's civil service separation which was the result of the denial of his re-enlistment.
Consistent with the reasoning in Birkle, we find that the instant complaint does not state a claim that can be addressed in the 29 C.F.R. Part 1614 EEO complaint process. We note that the issues Complainant alleged involve his termination due to his separation from military service. In essence, he alleges that he should not have been required to retire from the Air National Guard before he was 62. This is a military, and not a civilian matter. See Wilkens v. Department of the Air Force, EEOC Appeal No. 01973899 (July 7, 1998).
CONCLUSION
Accordingly, for the reasons set forth above, we AFFIRM the Agency's dismissal of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
October 30, 2015
__________________
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 Complainant also raised several harassment claims in this complaint, related to events leading up to his termination, which were dismissed by the Agency in an earlier decision.
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