U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvaro M.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense, Agency. Appeal No. 0120162658 Agency No. 16-00681-02620 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 15, 2016, dismissing a formal 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. BACKGROUND During the period at issue, Complainant was an active United States Marine, CLR-1, 1st Transportation Battalion, 1st Marine Logistics Group at Camp Pendleton, California. On July 6, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race when: 1. On May 25, 2016, Complainant was discharged from the Agency without receiving due process, was "talked down to", "not guided" by the Staff Sergeant, and treated differently than a White Navy Corpsman. On August 15, 2016, the Agency issued a final decision. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency found that, in accordance with 29 C.F.R § 1614.103(d)(1), Complainant was in active duty military status during the relative time period. The instant appeal followed. Complainant does not raise any new contentions. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that complaints that fail to state a claim under 29 C.F.R. § 1614.103 or 29 C.F.R. § 1614.106(a) shall be dismissed. EEOC Regulation 29 C.F.R. § 1614.103(d)(1) provides that Part 1614 regulations do not apply to uniformed members of military departments. The courts have held, unlike civilian employees, military personnel within the reserve components, are not covered under Title VII. See Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978). The Commission's jurisdiction over complaints by federal employees does not extend to uniformed military personnel. See 29 C.F.R. § 1614.103(d)(1). Here, Complainant's allegations of discrimination concerned his removal from his active military position. Complainant stated that since he became a civilian post-discharge, he wished to file a formal complaint regarding the subject claims. However, during the relevant time period he was still an active uniformed military personnel. Accordingly, the Agency's final decision dismissing the formal complaint for the reason addressed herein 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, Director Office of Federal Operations January 18, 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 0120162658 3 0120162658