01A24736
03-18-2003
James A. Newman, Jr., Complainant, v. Toby Rosenblatt, Chairman, The Presidio Trust, Agency.
James A. Newman, Jr. v. The Presidio Trust
01A24736
03-18-03
.
James A. Newman, Jr.,
Complainant,
v.
Toby Rosenblatt,
Chairman,
The Presidio Trust,
Agency.
Appeal No. 01A24736
Agency No. 0201-JN01
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the final
agency decision. This case pertains to 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
ISSUES PRESENTED
The issues presented herein are:
Whether the Presidio Trust (hereinafter �the Presidio Trust� or �the
Trust�) is a private sector employer or executive agency of the federal
government within the meaning of Title VII, 42 U.S.C. � 2000e et seq.,
and the ADEA, 29 U.S.C. � 621 et seq., and as such, is within the
coverage of the Acts and the jurisdiction of the EEOC; and
Whether the agency properly dismissed complainant's formal EEO complaint
for failure to seek EEO counseling in a timely manner.
BACKGROUND
Complainant, a Plumber Work Leader, worked at the Presidio Trust in San
Francisco, California (the facility). Complainant has been employed with
the government for over twenty-eight (28) years. The record reflects
that, after discovering that a Caucasian employee had been promoted to the
Residential Construction Manager position, complainant wrote the Trust's
Assistant Deputy Director for Administration (ADD) on May 9, 2001 and
requested that the agency conduct an investigation into the management
and hiring practices of the facility. Complainant asserted that the
Trust's management model promoted �waste, �in your face' discrimination,
disparity in pay scale, employee harassment and abuse, and violation of
government policy and procedures.� Complainant identified himself as
an African-American in his letter.
By letter dated August 17, 2001, the ADD responded to complainant and
stated that he found no evidence to support complainant's allegations.
The ADD encouraged complainant to raise future concerns through his
supervisory chain, specifically to the Deputy Director of Operations.
He further encouraged complainant to present possible solutions or
suggestions for alternatives that specifically addressed concerns
complainant might raise.
On October 31, 2001, after being informed by an outside source that
he should initiate a complaint under EEOC regulation 29 C.F.R. �
1614.105 with the Presidio Trust, complainant made his initial EEO
Counselor contact. At that time, complainant informed the Counselor
that he was unaware of the EEO filing periods. On or about January
24, 2002, complainant filed a formal complaint, alleging that he was
subjected to discrimination on the bases of race (African-American),
age (D.O.B. 8/15/44), and reprisal for prior EEO activity when:
He was not selected for the position of supervisor in the Residential
Construction/Maintenance Department on or about March 2001 (bases:
race and age);
He was not provided an opportunity to apply for the job on or about
March 2001 (bases: race and age);
He was transferred to the Commercial Construction Department to report
to a Work Leader on or about June 17, 2001 (bases: race and age); and
From January 30, 2001 and continuing to the present, he was subjected
to a hostile work environment, including severe disciplinary actions
greatly impacting his salary (basis: reprisal).
In its FAD, issued by the ADD under the title of Director of EEO,
the Presidio Trust stated that it is not under the jurisdiction of the
EEOC. It noted, however, that its EEO program uses EEOC regulations 29
C.F.R. Part 1614 as a reference in administering its program. The Trust
dismissed issues 1, 2, and 3 for untimely counselor contact, pursuant
to 29 C.F.R. � 1614.107(a)(2). The Trust noted that complainant did
not indicate in his May 9, 2001 letter to the ADD that he believed
the agency's actions in issues 1 and 2 were motivated by prohibited
discrimination. With respect to issue 4, the Trust found that complainant
did not raise the issue with the EEO Counselor and that he was pursuing
the issue through another informal EEO complaint.
CONTENTIONS ON APPEAL
Complainant asserts that the Presidio Trust does not have a formal
EEO program procedure that is known to its employees, a fact that is
verified in the Counselor's report. Complainant argues that, once he
became aware that the Caucasian employee had been promoted, he reported
the incident to the ADD in his May 9, 2001 letter. Furthermore, once an
outside source informed him that he should initiate a complaint under
EEOC regulation 29 C.F.R. � 1614.105, he did so immediately. He notes
that the Trust is dismissing his complaint under the very regulations
it asserts are not applicable to it.
The Presidio Trust asserts that it is a wholly owned government
corporation, created in 1996 by the Presidio Trust Act, 16 U.S.C.A. �
460bb note as amended (West 2001), to manage for �public use and enjoyment
certain areas of Marin and San Francisco Counties, California, possessing
outstanding natural, historic, scenic and recreational values.�<1>
16 U.S.C. � 460bb. The Trust further explains that Congress mandated
that it �be managed through an innovative public/private partnership
that minimizes cost to the United States Treasury and makes sufficient
use of private sector resources.� The Presidio Trust Act � 101(7).
By implication, it argues that it is not within the coverage of Title
VII or the ADEA since it is neither a private sector employer nor an
arm of any branch of the government. Consequently, the Trust claims
that the Commission lacks jurisdiction over this and any other charge
filed against it by an employee.
The Trust identifies the Presidio Trust Act � 103(c)(7) as the basis for
its assertion that it is not covered by the laws administered by the EEOC.
That section provides:
Notwithstanding any other provisions of law, the Trust is authorized to
appoint and fix the compensation and duties and terminate the services
of an executive director and such other officers and employees as it
deems necessary without regard to the provisions of Title 5, United
States Code, or other laws related to the appointment, compensation or
termination of Federal employees.
The Presidio Trust Act � 103(c)(7). The Trust argues that, to the extent
that the EEOC administers laws relating to �the employment, compensation,
or termination of federal employees . . ., Congress intended such
provisions to be inapplicable to the Trust.�
The Trust asserts that it fully supports the principles of equal
employment opportunity. Furthermore, in a May 25, 2001 letter, the ADD
explained that the Trust was establishing its EEO policies and procedures
for its employees with the intention to �mirror many aspects of the [Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614],
MD-110, including an informal fact-finding stage, alternative dispute
resolution, a formal investigation phase, and a final agency decision.�
ANALYSIS AND FINDINGS
Jurisdiction
Title VII's prohibitions against employment discrimination on the basis
of an individual's race, color, religion, sex, or national origin apply
to employers and other entities covered by the Act. See 42 U.S.C. �
2000e-2 and 3.<2> The term "employer" is defined in Section 701(b)
of the Act. That section provides, in pertinent part, as follows:
... "employer" means a person engaged in an industry affecting commerce
who has fifteen or more employees for each working day in the current or
preceding calendar year, and any agent of such a person, but such term
does not include (1) the United States, a corporation wholly owned by
the Government of the United States....
42 U.S.C. � 2000e(b).
Although, as originally enacted, Title VII's protections against unlawful
discrimination did not apply to federal government employees or applicants
for federal employment, the Act was amended in 1972 to extend its coverage
to the federal sector.<3> Added by the 1972 amendments, Section 717(a)
of Title VII states:
All personnel actions affecting employees or applicants for employment
(except with regard to aliens employed outside the limits of the
United States) in military departments as defined in section 102 of
Title 5, in executive agencies as defined in section 105 of Title 5
(including employees and applicants for employment who are paid from
non-appropriated funds), in the United States Postal Service and
the Postal Rate Commission, in those units of the Government of the
District of Columbia having positions in the competitive service, and
in those units of the legislative and judicial branches of the Federal
Government having positions in the competitive service, and in the Library
of Congress shall be made free from any discrimination based on race,
color, religion, sex, or national origin. (Emphasis added.)
42 U.S.C. � 2000e-16(a).
The Commission must first determine whether the coverage of Title VII
extends to the Presidio Trust, either as a private sector employer
within the meaning of Section 701(b) or as a federal government entity
to which the provisions of Section 717 apply. If the Presidio Trust is
an instrumentality of the U.S. government, then it falls outside the
definition of "employer" in Section 701(b) and, consequently, is not
subject to the provisions of Section 703(a). If the Presidio Trust
is within the federal government, then it is covered under Section 717,
unless it is neither an executive agency nor a unit of the legislative<4>
or the judicial branch having positions in the competitive service
(nor comprised of such units). Only in the case that the Presidio
Trust is not (1) an executive agency or (2) a unit of the legislative
or the judicial branch, having positions in the competitive service,
would it fall outside the coverage of Title VII altogether.
Section 105 of Title 5 defines an executive agency as "an
Executive department, a Government corporation, and an independent
establishment."<5> A �Government Corporation,� as defined at Section
103 of Title 5, is �a corporation owned or controlled by the Government
of the United States.� 5 U.S.C. � 103(a). The Presidio Trust, as
established in 16 U.S.C. � 460bb, is a corporation wholly owned by
the United States Government.<6> The Presidio Trust Act � 103(c)(10).
Accordingly, the Commission is persuaded that, within in the meaning of
Title 5, the Trust is an executive agency.<7>
The remaining issue is whether employees of the Presidio Trust, an
executive agency, are covered by the provisions of Section 717(a) of
Title VII. Section 717(a) incorporates by reference the definition
of "executive agency" found at 5 U.S.C. � 105. The Commission finds
therefore that, since the Presidio Trust is an executive agency as defined
by Section 105 of Title 5, all its employees are within the coverage of
Title VII.
The Presidio Trust contends that Congress freed the Trust from government
structures that �constrain most executive agencies.� Specifically,
the Trust interprets the Presidio Trust Act � 103(c)(7), which exempts
the Trust from actions related to Title 5 of the United States Code and
�other laws related to the appointment, compensation or termination of
Federal employees,� to also exempt the Trust from the requirements of
Title VII. The Commission finds, however, that, within the plain meaning
of that provision, the phrase �other laws� cannot be construed to include
Title VII. Rather, while the clause exempts the Trust from administrative
procedures and civil service functions and responsibilities, it does
not free the Trust from compliance with the federal anti-discrimination
statutes, such as Title VII,<8> that were enacted to protect against
unlawful employment practices. We note in this respect that �[c]ourts
must presume that a legislature says in a statute what it means and means
in a statute what it says there.� Connecticut Nat'l Bank v. Germain,
503 U.S. 249, 253-54 (1992). We therefore presume that Congress
would have said that the Presidio Trust is exempt from the federal
anti-discrimination statutes, if this had been its intent.
The presumption that a statute means what it says is a difficult one
to overcome. In ignoring the plain meaning of the Presidio Trust Act
� 103(c)(7), the Trust has produced no evidence of a clear intent by
Congress to exempt the Trust, despite its governmental nature, from
being within the coverage of Title VII.<9> The inference the Trust
would draw from the Presidio Trust Act � 103(c)(7) cannot counter
Section 717 of Title VII's clear language, which includes executive
agencies within the coverage of Title VII. Congress may have vested
the Trust with specific powers in order to increase its independence
and autonomy, but it also provided the Trust with executive agency
status by establishing it as a wholly owned government corporation.
Contrary to the suggestion of the Presidio Trust, it would be illogical
to assume that Congress, because it granted the Trust some autonomy,
intended to grant the Trust an exemption from Title VII, providing it
a special status unlike either a private sector employer or an arm of
any branch of the government. Congress knows how to create entities and
confer upon them non-governmental status when it is Congress' intention
to do so.<10> Inasmuch as Congress embedded the Presidio Trust within
the federal government, the logical inference is that it intended the
Trust to be subject to the same laws, except as specifically stated in
the Presidio Trust Act � 103(c)(7), as other executive agencies.
The Commission finds, therefore, that the Presidio Trust is a federal
entity within the coverage of Section 717. The Trust is thus exempt
from the definition of "employer" under Section 701(b) of Title VII and,
therefore, foreclosed from being covered as a private sector employer
subject to the prohibitions contained in Section 703(a) of Title VII
and the procedures and remedies set forth in Section 706.
Prior to 1974, ADEA coverage did not extend to federal sector employment.
The 1974 amendments to ADEA added Section 15(a), the language of which is
virtually identical to that of Section 717(a) of Title VII.<11> Because
federal sector coverage under ADEA and Title VII are coextensive, the
status of the Presidio Trust under ADEA is no different from that under
Title VII.
Accordingly, the Presidio Trust, is an executive agency within the
meaning of Section 717 of Title VII and Section 15(a) of the ADEA and
is, therefore, within the coverage of the Acts and the jurisdiction of
the EEOC.
The Commission emphasizes that, while it does not question the Presidio
Trust's articulated commitment to equal employment opportunity, it
rejects the Presidio Trust's contention that it is wholly outside
the jurisdiction of the EEOC. In enacting Title VII and the ADEA
and subsequently amending them to extend their coverage to federal
and other public sector employees, as well as to employees of the
private sector, Congress manifested its clear intent to broadly prohibit
unlawful employment discrimination and provide a legal remedy therefor.
As remedial social legislation, Title VII and the ADEA are entitled to
liberal interpretation in order to effectuate the purpose of the Acts.
A narrow reading of the Presidio Trust Act, such as advanced by the
Trust in its contention that it is not covered by Title VII or ADEA,
would result in the deprivation of significant rights and protections
to its employees. Such a result, the Commission believes, would run
contrary to and frustrate the intent of Congress.
EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss
a complaint or a portion of a complaint which fails to comply with the
time limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved
person is required to initiate contact with an EEO counselor within 45
days of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of the
action. See 29 C.F.R. � 1614.105(a)(1). EEOC Regulations further provide
for extensions to the time limit when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or
her control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. 29
C.F.R. � 1614.105(a)(2).
In the instant case, complainant contends that he was unaware of the
45-day time limit. According to complainant, the agency failed to inform
employees of the Presidio Trust's EEO program. Complainant asserts
and the record reflects that he reported the incidents that he believed
to be discriminatory to the ADD in a May 9, 2001 letter. Furthermore,
once an outside source informed him that he should initiate a complaint
under EEOC regulation 29 C.F.R. � 1614.105, he did so immediately.
The Commission has consistently held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992). In the instant complaint, the agency has not met this burden.
The record does not support the agency's contention that complainant
should have been aware of the 45-day time limit. The agency failed to
provide evidence to show that the EEO process was known to its employees.
In fact, the EEO counselor's report stated that the Presidio Trust
did not have an EEO program in place, and while the procedures were
being drafted, they had not yet been approved by management or the
local bargaining unit. Moreover, when complainant complained to the
ADD in his May 9, 2001 letter, stating that the agency's management
model promoted �waste, �in your face' discrimination, disparity in
pay scale, employee harassment and abuse, and violation of government
policy and procedures,� the ADD directed him to raise future concerns
through his supervisory chain. While the Presidio Trust stated in its
FAD that complainant did not indicate that he believed the reported
actions to be caused by illegal discrimination based on race and age,
the record reflects that complainant made reference to discrimination,
disparity in pay, and harassment, and identified the number of years he
had worked for the Federal government and his race. We find that, in
his May 9, 2001 letter, complainant made statements regarding his belief
that discrimination existed in the Presidio Trust, and thus placed the
Presidio Trust on notice. Accordingly, we find that the agency failed
to provide evidence sufficient to support application of a constructive
notice rule. Pride v. United States Postal Service, EEOC Request No,
05930134 (August 19, 1993).
In addition, the Commission finds that, as to issue 4, the agency has
failed to provide evidence that complainant failed to seek counseling on
that issue. Therefore, issues 1, 2, 3, and 4 are remanded for further
processing in accordance with this decision and the proper regulations.
CONCLUSION
The Commission find that the Presidio Trust is an executive agency of the
federal government within the meaning of Title VII, 42 U.S.C. � 2000e-16,
and the ADEA, 29 U.S.C. � 633a, and as such, is within the coverage of
the Acts and the jurisdiction of the EEOC. The decision of the agency
is REVERSED and REMANDED for further processing in accordance with this
decision and the proper regulations. The parties are advised that this
decision is not a decision on the merits of complainant's complaint. The
agency shall comply with the Commission's Order set forth below.
ORDER (E0900)
The Presidio Trust is ordered to process the remanded claims in accordance
with 29 C.F.R. � 1614.108. The Presidio Trust 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 Presidio
Trust 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
Presidio Trust shall issue a final decision within sixty (60) days of
receipt of complainant's request.
Within sixty (60) calendar days of the date this decision becomes final,
the Presidio Trust is ordered to provide proof that it has established
an EEO process that conforms with EEOC regulations 29 C.F.R. Part 1614
et seq. and the Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (November 9, 1999).
A copy of the Presidio Trust's letter of acknowledgment to complainant
and a copy of the notice that transmits the investigative file and notice
of rights, as well as evidence of the Presidio Trust's EEO program must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
____03-18-03______________
Date
1 The powers and management of the Trust are vested in seven members,
including the Secretary of the Interior and six (6) individuals, who
are not employees of the Federal government, appointed by the President.
2 It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's race, color,
religion, sex, or national origin. 42 U.S.C. � 2000e-2(a).
3 Prior to the 1972 amendments, Exec. Order No. 11478, 34 Fed. Reg. 12985
(1969), prohibited discrimination in federal employment on the bases of
race, color, religion, sex, or national origin.
4 We note that Sections 117 and 301 of the Civil Rights Act of 1991,
as added, 105 Stat. 1072, 42 U.S.C. � 1981a, extended the rights
and protections of Title VII to employees of the Senate, the House
of Representatives, and �Instrumentalities of Congress,� defined as
the Architect of the Capitol, the Congressional Budget Office, the
General Accounting Office, the Government Printing Office, the Office
of Technology Assessment, and the United States Botanic Garden.
5 For the purposes of 5 U.S.C. � 104, an independent establishment is �(1)
an establishment in the executive branch (other than the United States
Postal Service or the Postal Rate Commission) which is not an executive
department, military department, government corporation, or part thereof,
or part of an independent establishment; and (2) the General Accounting
Office.� 5 U.S.C. � 104.
6 According to 16 U.S.C. � 460bb, the Presidio Trust is subject to
chapter 91 of Title 31 of the United States Code. 16 U.S.C. � 460bb.
7 We note that the Presidio Trust identifies itself as an �executive
agency of the U.S. government,� on its website at www.presidiotrust.gov.
8 Other federal anti-discrimination statutes include the ADEA, Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Equal Pay Act of 1963, as amended,
29 U.S.C. � 206(d) et seq.
9 The Trust acknowledges that �there is an unfortunate paucity of
legislative history regarding the plain text in the amendment.�
10 In establishing National R.R. Passenger Corporation (Amtrak) and
the Corporation for Public Broadcasting, Congress explicitly provided
that they were not agencies or establishments of the United States
Government. See 47 U.S.C. � 396(b) (providing that the Corporation for
Public Broadcasting "will not be an agency or establishment of the United
States Government"); 45 U.S.C. � 541 (providing that Amtrak "will not be
an agency or establishment of the United States Government") (repealed).
11 Section 15(a) of the ADEA, 29 U.S.C. � 633a(a), provides:
All personnel actions affecting employees or applicants for employment
who are at least 40 years of age (except personnel actions with regard
to aliens employed outside the limits of the United States) in military
departments as defined in Section 102 of Title 5, United States Code,
in executive agencies as defined in Section 105 of Title 5, United
States Code (including employees and applicants for employment who are
paid from nonappropriated funds), in the United States Postal Service
and the Postal Rate Commission, in those units in the government of the
District of Columbia having positions in the competitive service, and
in those units of the legislative and judicial branches of the Federal
Government having positions in the competitive service, and in the Library
of Congress shall be made free from any discrimination based on age.
(Emphasis added.) See also 42 U.S.C. � 2000e-16(a).