Carmelo L,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0520180570 (E.E.O.C. Oct. 31, 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,
Secretary,
Department of the Army,
Agency.

Request No. 0520180570

Appeal No. 0120181940

Agency No. L163928001

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120181940 (June 26, 2018). EEOC
regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

During the period at issue, Complainant was an applicant with the Oregon National Guard.
Complainant initiated an EEO complaint in which he alleged discrimination based on disability
when he was denied a military commission into the Oregon National Guard.

On April 11, 2018, the Oregon National Guard issued a final decision rejecting Complainant’s
complaint because it was not the proper venue to address his concern. The final decision noted
that Complainant contacted an Agency recruiter with the intent of joining the military. It was
noted that based on medical conditions disclosed to the Agency recruiter, Complainant’s
application to join the military was rejected.

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.
0520180570

2
The final decision stated that the EEO process is for Department of Defense civilians, and at the
time, Complainant was not a federal employee, not a previous federal employee, and not
applying for a federal technician position. Complainant appealed the Agency’s dismissal to the
Commission.

On appeal, Complainant stated his desire to initiate a class action against the Agency’s
“discriminatory military recruitment policy”, and noted the great impact it the case could have on
a board class individuals. Complainant argued that he was discriminatorily barred from joining
the military based on a medical diagnosis from his youth. Complainant argued that the Agency
made no attempts to understand the diagnosis, or evaluate him for a position. Complainant
argued that the Agency’s outright denial of his military recruitment application was clearly
discriminatory.

The Commission previously affirmed the Agency’s dismissal. Complainant v. Department of the
Army, EEOC Appeal No. 0120181940 (June 26, 2018). The Commission noted that a person’s
status as a member of the military is not a basis over which the Commission has jurisdiction. Id.
The Commission further cited to prior cases where the Commission has held that allegations
concerning the direct commission into the Army National Guard are not within the purview of
Commission regulations since these allegations are exclusively military matters. Id. See also,
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)).

In his Request for Reconsideration, Complainant asserts that the Commission’s prior
determination was inappropriate. Complainant argues that Section 504 of the Rehabilitation Act
of 1973 expressly covers any program or activity receiving federal financial assistance, or any
program that is conducted by any executive agency, and therefore his complaint should have
been processed.

We determine that the matters addressed by Complainant in the instant request were raised, or
could have been raised below. We emphasize that a request for reconsideration is not a second
appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request
is an opportunity to demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or will have a substantial impact on the policies, practices,
or operations of the Agency. Complainant has not done so here.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120181940 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

0520180570

3
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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, Director
Office of Federal Operations

October 31, 2018
Date