Carmelo L.,1 Complainant,v.Dr. Mark T. Esper, Acting Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jun 26, 2018

0120181940 (E.E.O.C. Jun. 26, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Carmelo L.,1
Complainant,

v.

Dr. Mark T. Esper,
Acting Secretary,
Department of the Army
(National Guard Bureau),
Agency.

Appeal No. 0120181940

Agency No. L163928001

DISMISSAL OF APPEAL

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) concerning his EEO complaint of unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§791 et seq.

A review of the record reveals that on November 13, 2017, Complainant initiated an EEO
complaint in which he alleged discrimination on the basis of disability when he was denied a
military commission into the Oregon National Guard.

On April 11, 2018, the Oregon National Guard issued a final action noting that Complainant’s
complaint is rejected because it is not the proper venue to address his concern. The final action
noted Complainant contacted an Army recruiter with the intent of joining the military. It was
noted that based on medical conditions disclosed to the Army recruiter, Complainant’s
application to join the military was rejected. The final action noted the EEO process is for
Department of Defense civilians, and Complainant was not a federal employee, not a previous
federal employee, and not applying for a federal technician position.

A person’s status as a member of the military is not a basis over which the Commission has
jurisdiction.

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.
0120181940

2
The Commission has previously held that allegations concerning the direct commission into the
Army National Guard are not within the purview of our regulations since these allegations are
exclusively military matters. See Complainant v. Department of the Air Force, EEOC Appeal
No. 0720110023 (July 28, 2015) (citing Complainant v. National Guard Bureau, EEOC Appeal
No. 01891698 (June 22, 1989)). On appeal, Complainant does not dispute that the alleged
discrimination occurred in connection with his recruitment into the Army Oregon National
Guard. Accordingly, Complainant's appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

0120181940

3
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

June 26, 2018
Date