0120170804
04-17-2017
Jerold Y.,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
Jerold Y.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal No. 0120170804
Agency No. T-2016-015-KS-A-AO
DECISION
On December 12, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 12, 2016, dismissing his 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 was a dual status technician.2 In his civilian capacity Complainant was an Information Technology Specialist (Network), GS-12, and in his military capacity a Sergeant Master Non-Commissioned Officer (NCO) serving as an Information Systems Chief. He worked and served with the Joint Forces Headquarters, Kansas Army National Guard in Topeka, Kansas.
On April 26, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his age (55) and reprisal for prior protected EEO activity under Title VII3 when:
1. On October 1, 2013, he was moved to a different section, supervisor; and job (from Information Technology Specialist (Systems Administration), GS-12 to Information Technology Specialist (Network), GS-12;4
2. In November 2014, regarding the appraisal of his GS-12 job performance for the period of October 1, 2013 through September 30, 2014;
3. On July 2, 2015, and one other time, S2 submitted documents to the Department of Defense Consolidated Adjudication Facility (DoD CAF) to permanently get his security clearance revoked;
4. By memorandum dated July 13, 2015, the Agency in his capacity of "IT Specialist (Network), GS-2210-12," put him on enforced leave because DoD CAF suspended his security clearance pending completion of its background investigation;
5. There were lengthy delays in the above background investigation; and
6. DoD CAF, by letter dated December 21, 2015, gave notification of its preliminary decision to revoke his security clearance.5
The Agency dismissed the complaint, in relevant part, for failure to state a claim. It reasoned that decisions involving the internal management of the military - specifically assignments and related decisions - are precluded from review by the "Feres Doctrine."6 In support, it recounted that Complainant is required to wear a military uniform and abide by all military customs and courtesies. Referring to Complainant's GS-12 position description, the Agency added that Complainant performs duties necessary to accomplish command, control, communications and computer functions in support of programs essential to state information management daily operations, training and readiness missions.
In January 2016, or thereafter, Complainant wrote that he still is permitted to perform his military drill days, but is not allowed to work during the week. Complaint file, Tab A, at 3. In one of his complaint forms, Complainant wrote that to retire from his GS-12 job he needs 30 years of Federal Service and be age 56, unless the military selects him to be let go first. He theorized that S2 is trying to get him fired on the technician side first and then move him to the military side so he must wait until age 60 to get any type of retirement after 28 years of technician work and 30 years of Military. Complaint file, Tab B, at 5.
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 discrimination claims arise from his capacity as a federal civilian employee - his movement to a different section, supervisor; and job (from Information Technology Specialist (Systems Administration), GS-12 to Information Technology Specialist (Network), GS-12; his appraisal for October 1, 2013 through September 30, 2014, on this GS-12 job, and his enforced leave from this GS-12 job. Further, based on Complainant being indefinitely suspended from performing his GS-12 job because of his security clearance issue, and his contention that this did not apply to the military side - he continues to perform his military drills - we find that the security clearance issue is also connected to his GS-12 job.
Accordingly, the FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims, as redefined herein, in accordance with 29 C.F.R. � 1614.108 et seq. 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
April 17, 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 The weight of the evidence is that Complainant was a dual status technician - throughout the record he was identified as a technician and his position description for Information Technology Specialist (Network), GS-12, identifies the "Position Status" as "Excepted (32 USC 709)." Complaint file, Tab F, at 6.
3 Complainant contended that around early 2012, he filed an equal opportunity complaint of sexual harassment against his second line supervisor - a Colonel who was the Director of the Information Management Directorate (S2) - for sexually harassing a co-worker, and alleged S2 retaliated against him for this. Complaint file, Tabs A, at 1 and B at 4.
4 Complainant wrote that the effective date of the job change was July 13, 2014.
5 The Agency defined Complainant's complaint in its October 12, 2016, FAD. The above issues vary to some degree from this. After reviewing both of Complainant's complaint forms and the counselor's report, we find our listing of claims better captures Complainant's complaint.
6 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.
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