01a01199
07-06-2000
Joseph S. Sposato, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Joseph S. Sposato, )
Complainant, )
)
v. ) Appeal No. 01A01199
) Agency No. AL900000165
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated October 29, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint,
complainant, a Plant Protection and Quarantine Officer with the Department
of Agriculture (USDA), alleged that he was subjected to discrimination
on the bases of race and in reprisal for filing his complaint in that
he was harassed when, inter alia:
On January 7, 1999, while performing his duties to inspect military
aircraft at Hickam Air Force Base, a named security officer ordered
complainant to step away from his Government vehicle and arrested him,
falsely accused him of traffic violations, subjected him to a pat down
search and a sobriety test, handcuffed him, had him interrogated and
given an �intoxilyzer test,� and caused him to be issued a citation
for reckless driving and have his driving privileges suspended; and
On April 26, 1999, his reckless driving charge, after his plea of not
guilty in Federal Court, was changed to Inattention while driving.�
On October 29, 1999, the agency dismissed complainant's claims pursuant
to EEOC Regulations for failure to state a claim. Specifically,
the agency determined that complainant was not an agency employee or
applicant eligible to file a discrimination complaint against the agency.
A review of the record indicates that complainant initiated his EEO
complaint with the Air Force, but that after determining that they lacked
jurisdiction, the agency transferred the case on February 23, 1999 to
USDA for processing. After USDA provided counseling, complainant filed
his complaint with USDA on June 7, 1999. By letter dated September
3, 1999, USDA forwarded complainant's complaint to the Air Force and
administratively closed their files on the case, claiming that the
Air Force was the proper agency for complainant to file his complaint.
In response to USDA's letter and complainant's request to the Air Force
EEO Counselor to recommence processing of his case, the Air Force issued
the dismissal that is the subject of this appeal.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any 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 federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
In the instant case, complainant alleged that he was harassed by an
agent of the respondent agency while performing his duties at Hickam Air
Force Base. The ability to be free of harassment and discrimination
is a condition of complainant's employment with his employing agency.
Consequently, we conclude that the alleged harassment against him by an
employee of the respondent agency resulted in harm to this condition.
Additionally, the Commission has held that an employee or applicant of a
federal agency who is negatively affected by an action taken by another
agency which affects a term, condition, or privilege of that person's
employment, may file a complaint of discrimination against the acting
agency. Buchhagen v. Department of Health and Human Services, EEOC
Request No. 05940948 (June 3, 1996). In fact, complainant is required
to file his complaint against the particular agency which has taken
the discriminatory employment action by which he is allegedly harmed.
See 29 C.F.R. ��1614.106(a). Therefore, the Air Force improperly
dismissed complainant's complaint.
It is the policy of the Commission that when two agencies bear joint
responsibility for an act of alleged discrimination, both agencies are
proper respondents and the complaint must be jointly processed. See Denson
v. U.S. Postal Service, EEOC Request No. 05920383 (June 11, 1992); Reyes
v. Office of Personnel Management, EEOC Request No. 05900916 (November 15,
1990). This policy has been instituted pursuant to 29 C.F.R. �1614.106(a),
to ensure that all agencies are joined which are parties indispensable to
the just adjudication of a complaint. See Denson; Reyes. Therefore,
the Air Force and the USDA are hereby joined as joint respondents,
and are ordered to jointly process the investigation.
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to contact the USDA and jointly process
complainant's complaint. The agency shall complete the initial contact
with the USDA and begin joint processing of this case within thirty (30)
calendar days of the date this decision becomes final. The agencies are
ORDERED to process the complaint in accordance with 29 C.F.R. �1614.108.
The agencies shall issue to complainant a copy of the jointly processed
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 complainant requests a final decision without a
hearing, the agencies 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 that his
complaint is being jointly processed with the USDA and a 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 - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
July 6, 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 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.