Joseph S. Sposato, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a01199 (E.E.O.C. Jul. 6, 2000)

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.