0120091564
07-24-2009
Thomas R. Rutherford, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Thomas R. Rutherford,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120091564
Agency No. DOSF03409
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 5, 2009, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In an EEO complaint, complainant alleged that he was subjected to
discrimination on the basis of age (70 years during incidents at issue
herein) when:
1. from April 28, to November 20, 2008, complainant was subjected to
harassment; and
2. Complainant was constructively discharged from the agency on or about
December 15, 2008.
The agency dismissed the claims for failure to state a claim on the
grounds that complainant filed his complaint against the wrong agency.
In its February 5, 2009 decision (FAD) the agency found that the alleged
harasser (RMO: age unknown) was an employee of the Department of Defense
(DOD), not the agency, and therefore concluded that complainant should
have filed his complaint against DOD. On appeal, complainant argues that
for the purposes of this complaint, RMO should be considered an agent of
the agency and that complainant therefore properly filed his complaint
with the agency. Complainant contends that RMO was supervised by an
agency employee, and furthermore, RMO was counseled about her alleged
harassment of complainant by an agency employee under the orders of
another agency employee.
The record shows complainant was employed as a Provincial Reconstruction
Team (PRT) Senior City Management Advisor in Iraq. See Complainant's
Appeal Brief, Exhibit 10. The position description (PD) states that it is
a temporary position in the Iraq Transition Assistance Office (ITAO) which
is a temporary organization within the agency. See id. The PD further
states that "PRTs are staffed by a combination of permanent and temporary
employees of [the agency], detailees from other Federal agencies and the
military departments, and contractor personnel." Id, see also Exhibit 11.
The PD further states that the PRTs are managed by the agency. See id.
The agency does not appear to dispute these facts. Complainant argues
that, while RMO was a DOD employee, she was also a supervisor within
the PRT structure and was therefore an agent of the agency.
We note initially that 29 C.F.R. � 1614.106(a) provides that a complainant
may file a complaint with "the agency that allegedly discriminated
against the complainant." See also Gadson v. Department of Treasury,
EEOC Appeal No. 01972092 (January 27, 2000) (noting that "complainant
is required to file his formal EEO complaint against the agency which
has taken the discriminatory employment action by which he is allegedly
harmed"). The agency "that allegedly discriminated" need not be the agency
that employed the complainant at the time the complaint was filed. See,
e.g., Horvath v. Office of Personnel Management, Appeal No. 01956761
(October 25, 1996) (noting that "the Commission repeatedly has held that
a complainant is required to file his complaint against the particular
agency which allegedly has discriminated against the complainant
regarding a term, condition, or privilege of employment, even where the
allegedly discriminating agency is not the employing agency"); see also
Colantuoni v. Office of Personnel Management, EEOC Request No. 05950136
(September 14, 1995) (stating that "[w]e discern no indication from
the ... Commission's regulations that an employee or applicant of a
federal agency who is negatively affected by an action taken by another
agency ... lacks standing to file his complaint against the particular
agency which has taken the discriminatory employment action by which he
is allegedly harmed"); and Warren v. Office of Personnel Management,
EEOC Request No. 05950295 (August 17, 1995) (ruling that 29 C.F.R. �
1614.106(a) contains "no requirement that the complainant be either an
employee or applicant for employment with the defendant agency").
We note, however, that while RMO did not work for complainant's employer,
the agency does not appear to dispute complainant's contention that RMO
was supervised and counseled by agency personnel and was serving on a
temporary detail in a program that was run by the agency. Thus, the
agency and DOD (RMO's employing agency) should be joined in the processing
of complainant's complaint. In Reyes v. Office of Personnel Management,
we noted that "[i]t has long been the policy of this Commission that when
OPM and another agency bear joint responsibility for an act of alleged
discrimination, both agencies are proper respondents and the complaint
must be jointly processed." Reyes v. Office of Personnel Management, EEOC
Request No. 05900916 (November 15, 1990), citing Cloud v. United States
Postal Service, EEOC Request No. 05881077 (June 9, 1989). This policy
ensures that all agencies which are "indispensable parties" are joined
in the processing and adjudication of an EEO complaint. See, e.g., Slay
v. Department of the Army, EEOC Request No. 05890271 (March 31, 1989);
see also Ferguson v. Department of the Navy, EEOC Appeal No. 01956211
(April10, 1997); and Johnson v. Department of the Air Force, EEOC Appeal
No. 01963212 (December 30, 1996). Because complainant, an employee of the
agency, alleges that he was exposed to discrimination in his workplace,
which is controlled by the agency, and because RMO was on a temporary
detail with the agency and was supervised and counseled by agency
personnel, we find that the agency (State) is such an "indispensable
party" here and must therefore be joined in the instant action.
Accordingly, the FAD is reversed, and the complaint is remanded to be
processed in accordance with the ORDER below.
ORDER
The agency is ORDERED to contact the Department of Defense and jointly
process complainant's complaint filed with the agency on December 23,
2008. The agency shall complete this initial contact with Department
of Defense and begin joint processing of this case within thirty (30)
calendar days of the date this decision becomes final. These two
agencies shall process the remanded claim(s) in accordance with 29
C.F.R. � 1614.108 et seq., and the investigations of each agency
shall be consolidated. Thereafter, Department of State 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, State and
Defense shall issue a joint final decision within sixty (60) days of
receipt of complainant's request. Evidence of joint processing of the
complaint must be sent to the Compliance Officer, as referenced below,
within thirty (30) days of the date this decision becomes final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 24, 2009
__________________
Date
2
0120091564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091564