04a00007
02-14-2000
Ramiro Rodriguez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau), Agency.
Ramiro Rodriguez v. Department of the Air Force
04A00007
February 14, 2000
Ramiro Rodriguez, )
Complainant, )
)
v. ) Petition No. 04A00007
) Request No. 05970875
F. Whitten Peters, ) Appeal No. 01960597
Acting Secretary, ) Agency No. T-0603-TX-F-09-93-NO
Department of the Air Force, )
(National Guard Bureau), )
Agency. )
____________________________________)
DECISION ON PETITION FOR CLARIFICATION
On February 1, 2000, the Equal Employment Opportunity Commission docketed
a petition for clarification of the order set forth in Rodriquez
v. Department of the Air Force, EEOC Request No. 05970875 (June 24,
1999).<1> The Commission accepts this petition for clarification pursuant
to 29 C.F.R. � 1614.503.
The issue presented herein is whether the agency must comply with the
Commission's Order for processing the remanded allegations in EEOC
Request No. 05970875.
Complainant filed a formal complaint in September 1993, in which he
alleged that he had been discriminated against when he was not selected
for the Director of Logistics position.<2> The agency initially accepted
the matter for investigation but subsequently dismissed it on the grounds
that its selection decision was a military matter outside the purview
of Federal EEO law. Complainant filed an appeal which was dismissed
as untimely. Rodriquez v. Department of the Air Force, EEOC Appeal
No. 01943201 (July 19, 1994) (Rodriquez I).
Complainant thereafter filed a request for reconsideration, which the
Commission granted. Rodriquez v. Department of the Air Force, EEOC
Request No. 05940933 (June 2, 1995) (Rodriguez II). In that decision,
the Commission found that complainant's appeal was timely filed and
remanded the complaint for a supplemental investigation in order to
determine whether the Commission had jurisdiction over the matter.
Following completion of its supplemental investigation, the agency
again dismissed complainant's non-selection allegation on the grounds
that it was a military matter and outside the Commission's jurisdiction.
Complainant thereafter filed an appeal. Rodriguez v. Department of the
Air Force, EEOC Appeal No. 01960597. In that decision, the Commission
found that complainant's complaint was improperly dismissed as a matter
outside EEO law and remanded complainant's allegation for processing.
The agency thereafter filed a request for reconsideration, which was
denied, and the Commission ordered the agency to process complainant's
remanded allegation concerning his nonselection for the position of
Logistics Management Officer. Rodriquez v. Department of the Air Force,
EEOC Request No. 05970875 (June 24, 1999).
The agency submitted a January 21, 2000 letter in which it stated that
at the time of the events that gave rise to the subjected complaint, the
complainant was a military member of the Texas Air National Guard and a
National Guard technician governed by the National Guard Technician Act
of 1968. The agency enclosed a copy of the National Guard Technician
Act of 1968, which states that National Guard technicians are required
to be a member of the National Guard and hold the compatible military
grade specified by the Secretary concerned for the position. The agency
provided documentation that complainant had been discharged as a military
officer in the Air National Guard and Reserve of Air Force effective
February 28, 1996, due to allegations of sexual harassment. Therefore,
the agency claimed that it cannot process complainant's allegation
concerning his non-selection for the position of Logistics Management
Officer because he is no longer a military member of the National Guard
and requested the EEOC withdraw its order in EEOC Request No. 05970875.
In accordance with 29 C.F.R. � 1614.503(c), the Commission may issue a
clarification of a prior decision. A clarification cannot change the
result of a prior decision or enlarge or diminish the relief ordered,
but may further explain the meaning or intent of the prior decision.
In the present case, it appears that the agency needs clarification as
to what effect, if any, complainant's discharge in February 1996, has on
the Commission's Order in EEOC Request No. 05970875. In the Commission's
decision in EEOC Request No. 05970875, the agency was ordered to process
complainant's allegation regarding his nonselection for the position of
Logistics Management Officer. We find that complainant's intervening
discharge from the agency in 1996, does not relieve the agency of the
requirement that processing of complainant's EEO complaint be completed.
To the extent that the agency believes complainant's intervening
termination has rendered the present complaint moot, the agency is not
precluded by the prior Order from issuing a final decision in accordance
with EEOC Regulations setting forth that determination. Accordingly,
the agency is ORDERED to comply with the Commission's prior order as
again set forth below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - PETITION FOR CLARIFICATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 (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:
February 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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.
2We note that complainant's complaint included a second allegation which
the agency dismissed on the grounds that it failed to state a claim.
Complainant challenged the dismissal, but the Commission agreed with
the agency's dismissal. Rodriquez v. Department of the Air Force,
EEOC Request No. 05940933 (June 2, 1995).