01993161
05-03-2000
Clay L. Hodges, Complainant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.
Clay L. Hodges, )
Complainant, )
)
)
v. ) Appeal No. 01993161
) Agency No. T-0309-KS-A-02-99-0
)
Louis Caldera, )
Secretary, )
Department of the Army, )
(National Guard Bureau), )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's decision dated February 9, 1999,
dismissing complainant's complaint for failure to state a claim is proper
pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656 (to
be codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).<1>
In his complaint, complainant alleged discrimination in reprisal for
prior EEO activity when on or about November 20, 1998, and December 4,
1998, an identified State Aviation Officer/Facility Commander contacted
the company commander of the 24th Med. Detachment Company, to which
complainant was a member, and requested that the commander either make
complainant return to drill or terminate him from the State National
Guard Unit. Complainant indicated that the identified State Aviation
Officer/Facility Commander was attacking him on the military side in an
attempt to get him out of the guard and then out of the civilian service.
Upon review, the Commission finds that the identified State Aviation
Officer/Facility Commander's alleged improper inquiry to the commander
concerning complainant's military status did not state a claim within
the purview of the regulations. See Birkle v. Department of the
Air Force, EEOC Request No. 05931001 (July 15, 1994) (National Guard
Technicians are not within the purview of the regulations when the
alleged discrimination arises from their capacity as uniformed military
personnel). The Commission also finds that complainant's claim that
the alleged discriminatory inquiry was intended to remove him from his
civilian service is speculative, and there is no evidence in the record
that he was, subsequently, removed from his military and/or civilian
service as a result of the alleged action. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 3, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.