01A33754_r
09-29-2003
W. Henry MacPherson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
W. Henry MacPherson v. Department of Justice
01A33754
September 29, 2003
.
W. Henry MacPherson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A33754
Hearing Nos. 280-A1-4336X, 280-A1-4367X, 280-A2-4283X
Agency Nos. P-99-0167, P-99-0198, P-2001-0030
DECISION
The Commission accepts, pursuant to 29 C.F.R. � 1614.405, complainant's
appeal from the April 29, 2003 final agency order concerning his
complaints of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq, and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq.
In its Final Order implementing the Order and Decision of Dismissal
of the EEOC Administrative Judge, the agency dismissed the complaints,
noting that the EEOC lacked jurisdiction over the complaints. A review
of the record reveals that at all times relevant, complainant was a
commissioned officer in the Public Health Service.
On October 13, 2000, the Commission issued its decision in Raymond
v. Department of Health and Human Services, EEOC Appeal No. 01987012,
holding that: The Public Health Service Act now provides that "active
service of commissioned officers of the Service shall be deemed to be
active military service in the Armed Forces of the United States for
purposes of all laws related to discrimination on the basis of race,
color, sex, ethnicity, age, religion, and disability." 42 U.S.C. � 213(f)
(Supp. 2000). The Commission's jurisdiction over complaints by federal
employees does not extend to uniformed military personnel. See 29
C.F.R. � 1614.103(d)(1). Furthermore, we note that in the preamble to
the revised regulations at 29 C.F.R. Part 1614, governing the EEOC's
federal sector complaint process, the Commission noted the amendment by
Congress to the Public Health Service Act and specifically declined to
add the Public Health Service Commissioned Corps to the list of entities
covered by the EEOC Regulations. See Matters of General Applicability,
64 Fed. Reg. 37,644, 37,655 (1999). Since the Public Health Service Act,
supra, provides that all active service commissioned officers of the
Public Health Service are considered active military service officers for
purposes of the discrimination laws, the Commission lacks jurisdiction
over this matter. See also Tucker v. Department of Transportation,
EEOC Request No. 05940638 (November 10, 1994).
Accordingly, the agency's decision is hereby AFFIRMED.
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
September 29, 2003
__________________
Date