National Guard rejects EEOC jurisdiction

By Ramsey Scott

Wyoming Tribune Eagle

Via Wyoming News Exchange

CHEYENNE – The U.S. Equal Employment Opportunity Commission has cited the Wyoming National Guard for continually failing to participate in a complaint hearing brought by a former dual-status Guard employee.

Guard leaders have countered that the complaint filed in 2012 fell outside of the jurisdiction of the EEOC, and they were under no obligation to participate in any of the process.

The case centers around complaints filed by Rachel Bennett, a former dual-status technician of the Wyoming National Guard. Dual-status technicians are employed in a civilian role, but also must be active members of the military.

Bennett claimed in 2012 she had been discriminated against due to her being a new mother. She said she was fired from her civilian role as retaliation for trying to address what she described as harassment and a hostile work environment.

“My experience in the Guard was horrific. As a female officer, it was not a good experience. But that was mostly related to attempting to file a complaint for what I consider to be reprisals and discrimination,” Bennett said. “(I) was accused of not being able to do my job as a squadron commander because I was a new mom.”

Bennett said she was accused of not being able to perform her duties because she tried to file an EEOC complaint and bring attention to what she saw as wrongdoing by those higher in the command structure.

An EEOC administrative judge – which is an employee of the agency who adjudicates claims – found in 2014 that dual-status Guard employees do fall under the agency’s jurisdiction.

“The (Wyoming National Guard) sent a letter in January 2015, stating its position that the case was closed, and the (EEOC) had no jurisdiction,” Nancy Weeks, the current administrative judge handling the case, wrote on June 18. “The (Wyoming National Guard) refused to conduct an EEO investigation and defied the Commission’s order to comply with discovery, despite being given two possibilities.”

Deidre Forster, spokeswoman for the Wyoming National Guard, said the agency couldn’t comment on pending litigation. But the Guard was adamant the EEOC had no jurisdiction over the claim because of when it was filed.

“Before December 2016, each state’s adjutant general was the final authority of all dual-status technician (complaints),” Forster said.

While Congress changed the law in December 2016 to give EEOC oversight over those cases, Forster said there were numerous cases in federal court that found the EEOC’s jurisdiction wasn’t retroactive before that law change.

Given their stance and legal precedence, Forster said the Wyoming National Guard was under no obligation to follow directives from the EEOC in this or any other case from before December 2016.

In its findings in favor of Bennett, the EEOC didn’t actually address her original complaints.

Weeks, in her sanctions order, said the passage of time since the complaint was filed kept any investigation from discovering whether the original complaint made by Bennett was valid. Because of the Wyoming National Guard’s refusal to comply with orders, she said sanctions were appropriate and a default judgment was awarded to Bennett.

“I also conclude their lack of candor caused harm to the case and added to the delay,” Weeks wrote.

Forster said an investigation was conducted after Bennett’s claim in 2012 by a member of the National Guard from out of state, and her termination was upheld as valid.

“It’s our agency’s position we have done nothing wrong. We don’t believe the EEOC has jurisdiction, and we look forward to having the issue determined in a (federal) court of law,” Forster said.