01A03716
04-10-2001
James W. Noce, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
James W. Noce v. U.S. Department of the Army
01A03716
April 10, 2001
.
James W. Noce,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A03716
Agency No. AFDEFO-0003-A0-420
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 7, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant, a non-dual status military technician with the Army
Reserve, filed an EEO complaint claiming that the agency violated the
ADEA when he was forced to retire under the newly enacted provisions
of 10 U.S.C. � 10218.<1> Complainant contends that these provisions,
which mandate separation of all non-dual status military technicians<2>
who are eligible for an unreduced retirement
annuity, violate the ADEA and that his removal under these provisions
constitutes age discrimination.
In its decision, the agency dismissed this complaint on the grounds of
failure to state a claim, finding that the provisions of 10 U.S.C. � 10218
were lawfully mandated by Congress, and that complainant was properly
separated under these provisions. Furthermore, the agency also found
that complainant's challenge of the legality of this Congressionally
enacted statutory amendment is not within the purview of the Commission's
regulations, and dismissed the complaint for this reason as well.
Complainant now appeals the agency's decision.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. The Commission has consistently held that complaints
challenging statutorily created exceptions to the ADEA fail to state a
claim. See Campbell v. Department of Justice, EEOC Request No. 05960550
(April 17, 1997). Moreover, in Brumbaugh v. Department of the Army, EEOC
Appeal No. 01A05531 (March 29, 2001), the Commission specifically found
that the provisions of 10 U.S.C. � 10218 create a statutory exception to
the ADEA, permitting the agency to implement the mandatory separation
of non-dual status military technicians who are eligible for unreduced
retirement annuities, without resulting in an actionable claim under
the ADEA.
Accordingly, we find that the agency properly dismissed the instant
complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), and we AFFIRM the agency's decision in this case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 10, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On October 5, 1999, Congress enacted the National Defense Authorization
Act for Fiscal Year 2000 (Public Law 106-65), which amended Chapter
1007 of Title 10, United States Code, by adding 10 U.S.C. � 10218 as a
new section.
210 U.S.C. � 10217 defines a non-dual status military technician as
a civilian employee of the Department of Defense hired as a military
technician before the date of enactment of the National Defense
Authorization Act for Fiscal Year 1998, who as of the date of the
enactment of that Act, is not a member of the Selected Reserve, or after
such date ceased to be a member of the Selected Reserve.