0120161696
03-23-2017
Chau B.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chau B.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120161696
Agency No. T-2015-034-MI-A-G
DECISION
On April 16, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 23, 2016,2 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Dual Status Technician - Production Controller, GS-9 at the Agency's Joint Force Headquarters, Maneuver and Training Equipment Site in Grayling, Michigan (Michigan National Guard).
Complainant filed an equal employment opportunity (EEO) complaint dated June 6, 2015, alleging that the Agency discriminated against her based on her sex (female) when she was terminated effective March 15, 2014.3
The Agency dismissed the complaint for failure to state a claim. First, it reasoned that the appellate decision by the Adjutant General was not appealable. Second, it reasoned that decisions involving the internal management of the military are precluded from review by the "Feres Doctrine,"4 and Complainant is required to wear the military uniform and abide by all military customs and courtesies.
Complainant was removed on the grounds that over a two year period (1) she engaged in an impermissible relationship with an officer soldier of a different rank, which created a predictable adverse impact on discipline, authority, morale, and the ability of the command to accomplish its mission, and (2) misused her position as a military technician to obtain and use government vehicles (benefits from the improper relationship) located at Grayling for non-official use during Annual Training, drill weekends, and during the technician duty day.
In her military capacity Complainant is a Master Sergeant. There is no indication in the record this was affected.
On appeal, Complainant argues that her technician position was civilian, and the charge against her was under the federal technician regulation.
ANALYSIS AND FINDINGS
In Petitioner v. Department of the Air Force (National Guard Bureau), EEOC Petition No. 0420140014 (July 2, 2015), the Commission reiterated its long-standing position that dual status technicians are considered both uniformed military personnel as well as federal civilian employees. We also stressed our long-held position that dual status technicians are covered by the federal sector EEO process when the alleged discriminatory action arises from the individual's capacity as a federal civilian employee, and thus the Commission has jurisdiction over those cases. The Commission reiterated that each National Guard dual status technician complaint must be analyzed on a case-by-case basis to determine whether the Commission has jurisdiction. In making this determination, the fact that a complainant wears a uniform, works on a military base or works on military equipment is not dispositive of the jurisdictional question. Id.
Here, Complainant's discriminatory action arises from her capacity as a federal civilian employee - her termination from her civilian technician position. Petitioner v. Department of the Air Force (National Guard Bureau), EEOC Petition No. 0420100009 (Mar. 22, 2016) (Agency's argument that the petitioner was demoted and ultimately dismissed from his civilian position because he was removed from his military status goes to the merits of the case, and is indicative of an articulation of a legitimate, nondiscriminatory reason for the Agency's actions in the petitioner's civilian capacity).
Accordingly, the FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claim, as redefined herein, in accordance with 29 C.F.R. � 1614.108.5 The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
March 23, 2017
__________________
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 We find that the appeal is timely because there is no indication in the record that the FAD contained or was accompanied with appeal rights to this office.
3 Complainant wrote that the date of her removal was March 8, 2015, when her administrative appeal thereof was finally denied by the Adjutant General, Michigan National Guard, State of Michigan. The effective date of her removal, however, was on March 15, 2014, as evidenced by a Standard Form 50. The Agency found that while the original termination occurred in 2014, Complainant's complaint was based on the state denying her administrative appeal in 2015. The later claim, however, fails to state a claim because it is a collateral attack on another administrative proceeding. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding such as the grievance process, the workers' compensation process, or, a state proceeding. Clarry v. Department of Transportation, EEOC Appeal No. 01A55679 (Feb. 24, 2006)(internal administrative procedure). Since Complainant is challenging her termination, we find her complaint actually regards her removal on March 15, 2014.
4 The Feres doctrine refers to the Supreme Court's recognition that military personnel may not sue the government for actions arising during their active military duties. Feres v. United States, 340 U.S. 135 (1950). The Feres doctrine, also referred to as the intra-military immunity doctrine, is based on the notion that there should not be a judicial second-guessing of military decisions. Id.
5 On appeal, Complainant raises the additional basis of reprisal, but in light of our redefinition of the complaint it is not clear if she is alleging reprisal for prior EEO activity. Prior to starting the investigation, the Agency shall ask Complainant to clarify if she also alleging discrimination based on reprisal for EEO activity, and if she replies in the affirmative it shall investigate that basis, as well as the basis of sex (female).
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