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348833289
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Title VII
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Title VII
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Records of the Office of National Service (Clinton Administration)
AmeriCorps Files
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FOIA Number: 2013-0661-F
(3)
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Americorps
Series/Staff Member:
General Files
Subseries:
OA/ID Number:
24230
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Folder Title:
Title VII
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66
1
4
2
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Corporation for National Service
CORPORATION
Office of the General Counsel
FOR NATIONAL
1201 New York Avenue, N.W.
Suite 8200
SERVICE
Washington, D.C. 20525
Fax Number: (202) 565-2796
Telefax Message:
Date: 4/25/96
For:
Ron De MUNBEUN
Office:
Team USDA National Sevic Program
Telephone: (202) 720-4614
Fax : (202) 690-1131
This transmission consists of this cover sheet and 10 page(s).
From:
Rine Tucker
Comments: Here is letter to Ana Prada and
the Deace Corps case, WA discussed.
If you have any questions please call
me at (202) 106-5000 X 257
If there are any problems with this transmission, please call (202) 606-5000,
ext. 257
1201 New York Avenue. NW
Washington. DC 20525
Telephone 202-606-5000
AD-202
Getting Things Done.
AmeriCorps. National Service
Learn and Serve America
National Senior Service Corps
APR-25-1996 13:40 FROM CORPORATION GEN CNSL
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BY FACSIMILE ((303) 236-4151)
CORPORATION
April 25, 1996
FOR NATIONAL
Ana Prada
SERVICE
U.S. Department of Agriculture
Dispute Resolution Staff
755 Parfet Street, Suite 136
Lakewood, CO 80215
Re: AmeriCorps participants and Title VII.
Dear Ms. Prada:
This letter sets forth information relating to whether AmeriCorps participants are covered by title
VII of the Civil Rights Act of 1964, as amended. It is the Corporation's position that AmeriCorps
participants are not covered by title VII or any other employment discrimination law for the reasons set
forth below. (As we discussed, attached is Correri V. Peace Corps, an EEOC case.)
Background
The National and Community Service Act of 1990, as amended, created a unique program in
which AmeriCorps participants perform service in four areas: education, environment, public safety or
human needs. For example, participants may clean up a polluted stream or help children improve their
reading skills. Participants enroll for a specific term (usually between nine and twelve months) during
which they receive a fixed allowance to cover living expenses. At term's end, they receive an
educational award payable to student loan institutions or post-secondary schools.
1.
National service is distinct from employment.
The National and Community Service Act of 1990, as amended, reflects Congress' painstaking
efforts to create a wall between national service and employment. Listed first among the Act's purposes
is to "meet the unmet human, educational, environmental, and public safety needs of the United States,
without displacing existing workers". 42 U.S.C. $ 12501 (emphasis added).
The Act includes a litany of rules designed to separate national service from the labor market,
explicitly prohibiting national service participants from:
displacing or even reducing the hours, wages, or benefits of employees;
infringing on an employee's promotional opportunities;
duplicating an employee's duties;
1201 New York Avenue. NW
supplanting the hiring of employed workers; or
Washington. DC 20525
Telephone 202-606-5000
performing any duties that were performed by employees.
Getting Things Done.
AmeriCorps. National Service
Learn and Serve America
National Senior Service Corps
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Ana Prada
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April 25, 1996
42 U.S.C. § 12637.
Moreover, the definitions section of the Act provides that "[a] participant shall not be considered
to be an employee of the program in which the participant is enrolled". 42 U.S.C. § 12511(17)(B)
(emphasis added).
2.
AmeriCorps participants are provided a fixed living allowance not a wage.
As further evidence that Congress established a separate statutory scheme for national service
participants that is entirely different from employer/employee relationships, full-time participants receive
a living allowance not a wage. The living allowance is intended to cover a participant's costs of food,
clothing, housing and transportation. The amount of the living allowance is not bargained for; it does
not fluctuate based on seniority, merit, or number of hours served in a given period of time. The amount
of the living allowance must be within a range set by the National Service Act, which is keyed to the
average annual allowance provided to Volunteers in Service to America, or VISTAs. 42 U.S.C. $ 12594.
The current living allowance minimum is $7945 for a full-time Member. Depending on the
number of hours required for successful completion of a term of service (the minimum is 1700 hours,
many programs require between 1800 and 1900), the actual per hour amount may be less than the federal
minimum wage.
In further contrast to a wage, the living allowance cannot affect a Member's eligibility for Food
Stamps, Section 8 housing, public housing, federal student financial aid and all other federal need-based
programs, excluding programs under the Social Security Act. 42 U.S.C. § 12637(d). And Members may
opt not to receive their living allowance.
3.
AmeriCorps participants can only be released for cause and cannot be "terminated at
will".
AmeriCorps programs cannot terminate a participant's term of service at will and without cause.
Programs must demonstrate cause, such as misconduct, prior to releasing a participant against his or her
wishes. Programs are required to provide a grievance process to a participant wishing to contest a
decision to release for cause.
4.
The U.S. Department of Labor has ruled that, as a matter of federal law,
national service participants need not be provided unemployment insurance.
In a Program Letter dated April 20, 1995, the Department of Labor ruled that coverage is not required for
AmeriCorps participants under the Federal Unemployment Tax Act. The Department concluded that, as
a matter of law under the National and Community Service Act of 1990, as amended, no
employer-employee relationship exists between participants and their programs. Having reached this
conclusion of law, the Department did not even apply common law principles or specific statutory
exemptions.
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5.
AmeriCorps participants are not covered by title VII or the Age Discrimination in
Employment Act.
The National and Community Service Act of 1990, as amended, specifically provides
which non-discrimination laws apply to AmeriCorps programs. The statute states that -
[a]ny assistance provided under this subchapter shall constitute Federal financial
assistance for purposes of title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.)
42 U.S.C. § 12635(b) (1993) (emphasis added). As a result of this provision, AmeriCorps participants
may file a discrimination complaint against the programs pursuant to any of these non-discrimination
laws. If Congress had intended for the participants to be considered employees for the purposes of title
VII or the Age Discrimination in Employment Act, it would have specifically provided so.
6.
EEOC's decision, that Peace Corps Volunteers are not covered by title VII or the Age
Discrimination in Employment Act, supports the Corporation's position.
The Commission has held that it has no jurisdiction over a title VII complaint filed by a former
Peace Corps Volunteer against the Peace Corps. See Correri V. Peace Corps, EEOC 05921050, (May 27,
1993). In its decision, the Commission stated that "[t]he Peace Corps Act [provides] that except as
provided in this chapter, volunteers shall not be deemed officers or employees or otherwise in the service
or employment of, or holding office under, the United States for any purpose." Id. (emphasis added).
The Commission further stated that-
"[g]iven that Congress passed a statute that unambiguously provides that Peace
Corps volunteers shall not be considered federal employees, except for the
purposes of certain laws, and Title VII, the Rehabilitation Act, and the Age
Discrimination in Employment Act are not included in the list of exceptions, we
have no jurisdiction over this matter."
Id. (citing Wisher V. Coverdell, 782 F. Supp 703, 707 (D. Mass. 1992)).
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Conclusion
Based on the language in the National and Community Service Act of 1990, as amended, (which
provides that AmeriCorps participants are not employees of the AmeriCorps programs) and the EEOC's
decision in Correri V. Peace Corps, it is the Corporation's position that AmeriCorps participants are not
covered by title VII or any other federal employment discrimination statute. Therefore, discrimination
complaints filed by participants against the AmeriCorps programs are not subject to title VII or any other
federal employment discrimination law.
I hope this letter is helpful to you. Please feel free to call me ((202) 606-5000 ext. 256) if you
have any questions.
Sincerely,
Q. Tucks Tucks
Rina Tucker
Assistant General Counsel
cc:
Ron De Munbrum,
USDA Grants Officer
Enclosure
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Correri, Paul T. VS Peace Corps.
Thu Mar 14, 1996
Equal Employment Opportunity Commission (EEOC)
Correri, Paul T. vs Peace Corps.
Document Number: 05921050
05921050
Date: 27 May 93
Tracker: 01922383
Subject: Decision on Procedural Issues
Employees - Definition
Equal Employment Opportunity Commission - Jurisdiction
Peace Corps - Volunteers
Requests for Reconsideration - Erroneous Interpretation of Law,
Regulation, or Policy
Hardcopy Page Count: 6
Paul T. Correri,
Appellant,
v.
Josh Hogan,
Acting Director,
Peace Corps,
Agency.
Appeal No. 01922383
Agency No. PC 92-04
GRANTING OF REQUEST TO REOPEN
INTRODUCTION
On September 21, 1992, the Peace Corps (hereinafter referred to as
the agency), initiated a request to the Equal Employment Opportunity
Commission (EEOC) to reopen and reconsider the decision in Paul T.
Correri v. Josh Hogan, Acting Director, Peace Corps, EEOC Appeal No.
01922383 (August 18, 1992). EEOC Regulations provide that the
Commissioners may, in their discretion, reopen and reconsider any
previous decision. 29 C.F.R. 1613.235 (a). The party requesting
reopening must submit written argument or evidence which tends to
establish one or more of the three criteria prescribed by 29 C.F.R.
1613.235 (b). The agency bases its request or. 29 C.F.R. 1613.235 (b) (2)
(the previous decision involved an erroneous interpretation of law or
regulation or misapplication of established policy). For the reasons
set forth herein, the agency's request is granted. 1
ISSUE PRESENTED
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The issue presented in this request is whether the Commission has
jurisdiction to entertain appeals filed by Peace Corps volunteers.
<Page>
BACKGROUND
Appellant, a former Peace Corps volunteer, filed an EEO complaint on
March 12, 1992, alleging discrimination based on his sexual orientation
and his age (62) when he was allegedly harassed by the Country
Director. The next day, the record reflects that appellant amended his
complaint to include the bases of color (white), national origin
(American), sex (male), race (Caucasian), and retaliation. By decision
dated March 24, 1992, the agency informed appellant that because he did
not contact an EEO Counselor on the additional bases of age, color,
national origin, sex, race, and retaliation, he had twenty (20) days to
provide more specific information on the allegations involving these
bases of discrimination. The agency noted that appellant's allegations
pertaining to the additional bases were vague and general. Moreover,
the agency dismissed appellant's allegation of discrimination based
upon his sexual orientation, on the grounds that sexual orientation is
not a basis covered under Title VII.
Appellant disagreed with the agency's decision and appealed to this
Commission. By decision dated August 18, 1992, the Commission affirmed
the agency's decision rejecting appellant's allegation of
discrimination based upon his sexual orientation, inasmuch as it is not
a basis covered by Title VII. Nonetheless, we found that the agency's
decision rejecting the remaining issues was improper. We stated that
the agency should have referred appellant to an EEO Counselor when he
amended his complaint. Accordingly, we ordered the agency to notify
appellant that he is to discuss his additional bases of discrimination
with an EEO Counselor, and amend his complaint. Thereafter, the agency
was instructed to process the allegations in accordance with 29 C.F.R.
1613.216 et seq.
In its request to reopen, the agency claims that Section 12 (b) of the
Domestic Volunteer Service Amendments of 1979, which amended the
Domestic Volunteer Service Act of 1973, precludes EEOC jurisdiction in
cases of discrimination filed by volunteers. The agency quoted the
following pertinent section (section 5057 (c) (1)) of the amendments:
The Director shall apply the nondiscrimination policies and
authorities set forth in section 717 of the Civil Rights Act of 1964,
in Title V of the Rehabilitation Act of 1973, and the Age
Discrimination Act of 1975 to applicants for enrollment for service as
volunteers, and to volunteers serving, under this Act and the Peace
Corps Act. Any remedies available to individuals under such laws, other
than the right to appeal to the Civil Service Commission authorized by
section 717 of the Civil Service Act of 1964, and transferred to the
Equal Employment Opportunity Commission by Reorganization Plan Number 1
of
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<Page 2>
1978, shall be available to such applicants or volunteers.
The agency stated that, according to the legislative history, this
exclusion was not designed to eliminate the right to appeal entirely,
only the right to appeal to another federal agency. In this regard, the
agency noted that it had established its own discrimination complaint
procedure pursuant to Congressional mandate. According to the agency,
Peace Corps Regulation 22 C.F.R. 306 states that ACTION regulations 45
C.F.R. Part 1225 et seq. are applicable to Peace Corps volunteers.
These regulations establish a discrimination complaint procedure which
includes the right to appeal within the agency and file a complaint in
District Court.
Appellant responded to the agency's request to reopen by letter dated
January 26, 1993. In this letter, he claims that the agency was
required to comply with the Commission's previous decision, inasmuch as
the request to reopen was filed thirty five (35) days after the August
18, 1992 Commission decision.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission notes that 29 C.F.R.
1613.235 (b) states that parties may request reopening, provided that
the request is made within thirty (30) days of receipt of the previous
Commission decision. The record reflects that the agency received the
August 18, 1992 decision on August 20, 1992, and filed the request to
reopen on September 21, 1992. The Commission notes that the thirty (30)
day period for filing a request to reopen therefore expired on
September 19, 1992. However, we also note that September 19, 1992 was a
Saturday. EEOC Regulation 29 C.F.R. 1613.240 states that if the last
day of the time period falls on a Saturday, Sunday, or federal holiday,
the period shall be extended to include the next business day. In this
case, the next business day is September 21, 1992, the date the agency
filed its request. Accordingly, the Commission finds that the agency's
request is timely, and compliance with our August 18, 1992 decision was
properly suspended.
The Commission must now address the jurisdictional issue presented in
the agency's request to reopen. The agency contends that 1979
amendments to the Domestic Volunteer Service Act specifically preclude
Peace Corps volunteers from filing an appeal with the Commission.
According to the agency, these amendments were designed to contain the
discrimination process within the agency. In fact, the agency cites
agency regulations which establish a separate complaint procedure to be
utilized by volunteers filing complaints, and claims that this
procedure does not provide for a right to appeal to the EEOC.
<Page 3>
The Commission acknowledges that the Domestic Volunteer Service Act
of 1973 was created, in part, to establish ACTION as a federal agency
and to administer domestic volunteer programs. At one time, the Peace
Corps was a part of ACTION; however, the International Security and
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Development Cooperation Act of 1981, approved on December 29, 1981
(P.L. 97-113), established the Peace Corps as an independent agency.
Accordingly, 42 U.S.C. 5057 of the Domestic Volunteer Service Act was
further amended in 1984 to strike "and the Peace Corps Act" from the
end of the first sentence. The first sentence of 5057 currently ends
"volunteers serving under this chapter.' Therefore, the Commission
finds that the agency's reliance on the Domestic Volunteer Service
Amendments of 1979 to eliminate Commission jurisdiction in this case
was in error.
The Commission finds, however, that it has no jurisdiction over this
matter, albeit for reasons other than those cited by the agency. We
make this finding based upon the Peace Corps Act, itself. The Peace
Corps Act states:
except as provided in this chapter, volunteers shall not be deemed
officers or employees or otherwise in the service or employment of, or
holding office under, the United States for any purpose. In carrying
out this subsection, there shall be no discrimination against any
person on account of race, sex, creed, or color. 22 U.S.C. 2504 (a).
The statute does provide for exceptions for, the purposes of the
Federal Tort Claims Act and any other Federal Tort liability statute,
the Federal Voting Assistance Act of 1955
...
section 3342 (a), (b), and
C (1) of Title 31, section 5584 of Title 5
and section 214 of this
title.' 22 U.S.C. 2504 (h). 2 The statute does not make an exception
for discrimination laws. The Commission concludes that, inasmuch as
Congress clearly knew how to make an exception when it BO intended,
failure to include discrimination laws was not an oversight. Given that
Congress passed a statute that unambiguously provides that Peace Corps
volunteers shall not be considered federal employees, except for the
purposes of certain laws, and Title VII, the Rehabilitation Act, and
the Age Discrimination in Employment Act are not included in the list
of exceptions, we find that we have no jurisdiction over this matter.
See Wisher V. Coverdell, 782 F. Supp 703, 707 (D. Mass. 1992).
<Page 4>
Support for this conclusion is found in the regulations passed to
implement the Peace Corps Act, which mirror the procedures and remedies
available generally to federal employees who wish to file complaints of
discrimination. Peace Corps Regulation 22 C.F.R. 306 provides for a
volunteer discrimination complaint procedure. This provision
specifically states that ACTION regulations concerning the volunteer
discrimination complaint procedure, appearing in 45 C.F.R. Part 1225,
are applicable to Peace Corps volunteers. The Commission notes that the
stated purpose of 45 C.F.R. Part 1225 is to " establish a procedure
for the filing, investigation, and administrative determination of
allegations of discrimination based on race, color, national origin,
age, sex, handicap or political affiliation, which arise in connection
with the recruitment, selection, placement or termination of Peace
Corps
Volunteers
An examination of the complaint procedure reveals that it tracks the
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complaint procedure established by this Commission, with the following
exceptions: no right of a hearing before an EEO Administrative Judge is
provided, and the right to appeal a final agency decision to this
Commission is excluded. The Peace Corps regulations provide, instead,
that after a final agency decision is issued, an aggrieved party may
file a civil action in an appropriate U.S. District Court. 45 C.F.R.
1225.9 (b) and 45 C.F.R. 1225.21.
It is clear that appellant was a volunteer in the Peace Corps, and
thus, his complaint of discrimination must be processed in accordance
with the volunteer discrimination complaint procedure established by
the Peace Corps Act. The fact that appellant's complaint was processed
through the EEO process until the request to reopen was filed, is not
dispositive. The explicit mandate of Congress which holds that a Peace
Corps volunteer is not an "employee" of the federal government is
controlling. Accordingly, we find that our previous decision was based
upon an erroneous interpretation of the law and regulations applicable
to Peace Corps volunteers, and we thus grant the agency's request to
reopen.
CONCLUSION
After a review of the agency's request to reopen, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. 1613.235 (b). Accordingly, it is
the decision of the Commission to grant the agency's request to reopen.
The decision of the Commission in EEOC Appeal No. 01922383 (August 18,
1992) is hereby reversed. There is no further right of administrative
appeal from the decision of the Commission on this request to reopen.
This decision does not constitute as decision on the merits of
appellant's complaint.
<Page 5>
RIGHT TO FILE A CIVIL ACTION (P1092)
This decision of the Commission is final, and there is no further
right of administrative appeal from the Commission's decision. You have
the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS of the date that you
receive this decision. 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 BO 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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
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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
5/27/93
Date
<Page 6>
FOOTNOTES
Footnote 129 C.F.R. Part 1614 (57 Fed. Reg. 12,634) became effective October,
1992. This rule revises the way federal agencies and the Equal
Employment Opportunity Commission will process administrative
complaints and appeals of employment discrimination filed by federal
employees and applicants for federal employment. However, since this
request to reopen was filed prior to the effective date of Part 1614,
it has been processed in accordance with Part 1613 regulations.
Footnote 2The exceptions enumerated in 22 U.S.C. 2504 (h) are identified as
follows: 31 U.S.C. 3342 (check cashing and exchange transactions) i 5
U.S.C. 5584 (claims for overpayment of pay and allowances) ; and 22
U.S.C. 214 (fees for executions and issuance of passports; persons
excluded from payment).
*** End of Document ***
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