Complainant,v.John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jan 29, 2014

0120120460 (E.E.O.C. Jan. 29, 2014)

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

Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army
(National Guard Bureau),
Agency.

Appeal No. 0120120460

Hearing No. 480-2009-00564X

Agency No. T2009024CAAARGO

DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's decision,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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a “dual status”3
military technician with the 40th

1 This matter was the subject of an earlier appeal, EEOC Appeal No. 0120091740, which was
dismissed as premature.
Combat Aviation Brigade of the California Army National
Guard. Her duties consisted primarily of flying helicopters. On July 8, 2008, Complainant
filed a formal complaint alleging that the Agency discriminated against her on the bases of sex
(female) and age (50) when she was subjected to a hostile work environment. The complaint
(as amended on December 29, 2008) set forth more than 40 separate allegedly harassing

2 An EEOC Administrative Judge’s decision, dated September 1, 2011, became the Agency’s
final action pursuant to 29 C.F.R. § 1614.109(i).

3 The term “dual-status” refers to Complainant’s employment by the Agency as a civilian and
her simultaneous membership in the uniformed armed services.
0120120460

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incidents occurring over the course of 12 months. The alleged harassing events included, inter
alia

, verbal comments by supervisors and co-workers directed at Complainant, involuntary
reassignments and reprimands.
The Agency accepted the complaint in part4 and conducted an investigation. At the conclusion
of the investigation Complainant requested a hearing before an EEOC Administrative Judge
(AJ). On the Agency’s motion, the AJ assigned to the case dismissed the complaint as
“nonjusticiable,” applying the doctrine of intra-military immunity set forth in Feres v. United
States,

340 U.S. 135 (1950). The AJ held, in part, as follows:
In applying the legal standard to the above-captioned complaint, I find the
complainant fits the profile of an employee that performs military duties. The
claim alleged by the complainant occurred when the complainant was on duty
and in military uniform, specifically the claim originally arose from the
assignment of duties related to the complainant's military service. I further find
complainant's position is "irreducibly military in nature". Urie v.Roche, 209
F.Supp.2d 412, 416 (2002); Leistiko v. Stone, 134 F.3d 817, 821 (6th

Cir.
1998).
AJ Decision at 1-2.

ANALYSIS AND FINDINGS
The AJ’s reliance on Leistiko v. Stone, 134 F.3d 817 (6th Cir. 1998) in reaching her
conclusion that Complainant’s position is “irreducibly military in nature,” and therefore that
the Commission is without jurisdiction, is misplaced. Leistiko established a per se rule that
dual-status or “hybrid” employees such as Complainant are never within the coverage of the
federal employment discrimination statutes. The Commission has not followed that rule.
Instead, the Commission requires a case-by-case analysis to determine whether the alleged
discriminatory action impacted the complainant in the capacity of federal civilian employee or
uniformed member of the military. Neville v. Department of the Air Force

, Appeal No.
0720110023 (August 1, 2013).
The jurisdictional inquiry focuses on the nature of the discriminatory act rather than the nature
of the complainant’s position. See, Garcia v. Department of the Air Force (Air Force National
Guard Bureau)

, EEOC Appeal No. 01A61442 (August 7, 2006) (“federal [dual-status]
technicians are covered by Federal nondiscrimination law only when the alleged discriminatory
action arises from their capacity as civilian employees and not when personnel decisions affect
their capacity as uniformed military personnel”).

4 The Agency “dismissed” certain of the incidents giving rise to the claim of harassment for
failure to state a claim, for untimeliness and on other grounds.
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3
The Commission has repeatedly asserted jurisdiction over the claims of dual-status employees.
See, e.g., Snyder v. Dep't of Air Force, EEOC Appeal No. 01A23584 (March 26, 2003)
(alleged retaliation affected dual-status technician in his capacity as a civilian employee because
he was denied civilian promotions and assignments and was subjected to harassing remarks and
physical threats); Brown v. Dep't of Air Force

, EEOC Petition No. 0420050011 (May 16,
2007) (dual-status technician's challenged action arose from the technician's capacity as a
civilian employee when he was reassigned/demoted from one civilian position to another).
Similarly, many federal courts have found that claims of discrimination from dual-status
technicians must be analyzed on a case-by-case basis to determine the nature of the
discriminatory acts and that they may raise a discrimination claim if the discrimination related
to their civilian capacity. See, Wetherill v. Geren, 616 F.3d 789, 798 (8th Cir. 2010) (holding
that the court must determine whether or not the discrimination complained of by a dual-status
technician related to military service, and acknowledging that a dual-status employee “could
theoretically suffer an employment injury not incident to military service”); Mier v. Owens, 57
F.3d 747, 748 (9th Cir. 1995) (a dual-status technician could maintain a Title VII action unless
the court determined that the challenged actions were “integrally related to the military's unique
structure.”); See also, Jentoft v. United States

, 450 F.3d 1342 (Fed. Cir. 2006) (dual-status
technicians have justiciable claims under the Equal Pay Act).
The distinction between the per se rule followed by the AJ here and the case-by-case approach
followed by the Commission is elucidated in the concurring opinion in Overton v. New York
State Div. of Military and Naval Affairs 373 F.3d 83 (2nd

Cir. 2004) in which a claim of race-
based hostile work environment harassment was raised.
. . . the general military nature of the complainant's employment is not the
central concern. It is indeed irrelevant that [appellant] or [co-worker] were
wearing uniforms or worked on a military base when [co-worker] made the
challenged comments. Instead, the issue is whether the challenged conduct
itself, rather than the nature of the employment relationship, is military in
nature.
Indeed, courts from other circuits in similar cases have likewise focused on
whether the complained of actions implicate military concerns. See, e.g., Brown
v. United States, 227 F.3d 295, 299 (5th Cir.2000) (the plaintiff air-technician
“seeks review of actions taken by the military that form the basis of his military
discharge. While these actions had a civilian component ... they nonetheless
were actions taken within the military sphere.”); Gregory v. Widnall, 153 F.3d
1071, 1074 (9th Cir.1998) (“Title VII applies to Guard technicians except when
they challenge personnel actions integrally related to the military's unique
structure.”) (citing Mier v. Owens, 57 F.3d 747, 748 (9th Cir.1995). These
cases . . . correctly focus on the challenged conduct, rather than on the nature of
the employment relationship. . . .

0120120460

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Id

at 98. (emphasis added).
Here, the AJ’s application of a per se rule denying jurisdiction over dual-status employees was
in error. Accordingly we reverse and remand for further processing. On remand, the AJ
should determine, with respect to each allegedly harassing incident, whether the challenged
conduct was military in nature. If not, the conduct may form the basis for a Title VII or
ADEA claim over which the Commission has jurisdiction.

CONCLUSION
For the foregoing reasons, the Agency’s final action is REVERSED and the matter is
REMANDED for further proceedings consistent with this decision.

ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the
Commission’s San Francisco District Office within fifteen (15) calendar days of the date this
decision becomes final. The complaint file must include a copy of this decision. The Agency
shall provide written notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge shall process the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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.

0120120460

5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 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 77960, Washington, DC 20013. 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.

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RIGHT TO REQUEST COUNSEL

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

Date
January 29, 2014