U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bret B.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120140402 Agency No. 870J13021 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated October 25, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq, and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a) for failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Air Force Basic Trainee at the Agency's Lackland Air Force Base in Lackland, Texas. On September 26, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Vietnamese), color (yellow), age (36) disability (physical and mental), and in reprisal for filing a complaint with the Inspector General when on December 16, 2011, Complainant was medically discharged from active duty from the United States Air Force. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's jurisdiction in the federal sector complaint process under Title VII extends to employees and applicants for federal employment. See 42 U.S.C. § 2000e-16(a). This coverage is extended to most executive agencies within the federal government, including "military departments as defined in 5 U.S.C. § 102." 29 C.F.R. § 1614.103(b)(1). Nonetheless, "uniformed members of military departments" are not covered by the federal sector process. 29 C.F.R. § 1614.103(d)(1). Unlike civilian employees, uniformed military personnel of any branch of the armed forces are not covered under Title VII, the ADEA, and the Rehabilitation Act at all, except as applicants for civilian employment. See DeGroat v. Dept. of the Air Force, EEOC Request No. 05900409 (July 20, 1990) (denying request to reconsider dismissal of full-time, active-duty military personnel's allegation of discrimination). In this case, Complainant was discharged from active duty from the military. Accordingly, we affirm the Agency's dismissal of Complainant's complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).2 CONCLUSION The Agency's final decision dismissing Complainant's complaint for failure to state a claim is AFFIRMED. 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 (S0610) 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 (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 __5/18/16________________ 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 Because we find that Complainant's complaint was properly dismissed on the grounds that, as a uniformed member of the Armed Forces, his allegation failed to state a claim, we will not address the Agency's alternate ground for dismissal, i.e., untimely EEO counselor contact. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140402 4 0120140402