Logan G.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionApr 1, 20160520160084 (E.E.O.C. Apr. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Logan G.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Request No. 0520160084 Appeal No. 0120151927 Agency No. 9Z0J15001 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested reconsideration of the decision in EEOC Appeal No. 0120151927 (October 8, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In his underlying complaint, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of sex (male). In its final decision dated April 10, 2015, the Agency determined that Complainant's complaint was comprised of the following claims: a. Complainant was informed that he was required by Air Force Reserve Command to wear the Air Force Uniform while in “Civilian Status” nor will he receive Active Duty pay/benefits while wearing the uniform under AFI 36-801, AFI 36-2903 and AFI 37- 703 effective on January 26, 2015. 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. 0520160084 2 b. Complainant was allegedly led to believe that the Union had agreed to the wearing of the uniform and later he found out that the Union had not met the timeline set forth and no agreement between the Union and the 908th Airlift Wing had not been made on the matter. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned “[t]he Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. As such, military members are not similarly situated to civilian employees and, therefore, the Equal Pay Act does not regulate the pay or benefit differences between the two. Both men and women Air Reserve Technicians are required to wear the uniform while in civilian status. In Air Reserve Technician positions pay and benefits are different when in military status and civilian status. The instructions requiring mandatory uniform wear by ARTs pertain to both men and women serving in dual ART positions.” In our previous decision, the Commission reversed the Agency’s dismissal of Complainant’s complaint. The Commission found to the extent Complainant is alleging that he is not receiving equal pay on the basis of sex, he has set forth an actionable claim. The Commission determined to the extent the Agency is alleging that both male and female Air Reserve Technicians are required to wear their uniforms while in civilian status pursuant to Agency directives, the Commission found that this assertion goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120151927 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth herein. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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. 0520160084 3 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. 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 0520160084 4 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 1, 2016 Date Copy with citationCopy as parenthetical citation