OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
_________________________
GLORIA A. HALCOMB,
Complainant,
v. Case No. 03-SN-45(RP) June 4 , 2004 RADIO AND TELEVISION CORRESPONDENTS’ ASSOCIATION;
EXECUTIVE COMMITTEE OF THE
RADIO-TELEVISION GALLERIES,
Respondent
_________________________
Before the Board of Directors: Susan
S. Robfogel, Chair; Barbara L. Camens, Alan V. Friedman; Roberta
L. Holzwarth; Barbara Childs Wallace, Members.
DECISION AND ORDER OF THE
BOARD OF DIRECTORS1
In On February 3, 2004, Hearing Officer, on
a motion to dismiss, issued the attached Order dismissing the Complaint
against Respondent on jurisdictional grounds; that is, as a matter
of law the Respondent could not constitute an employing office under
the Congressional Accountability Act, 2 U.S.C. §1301(9):
in essence holding that even if the Complainant’s factual
allegations were taken as true, jurisdiction would still be lacking
over the Respondent. The Complainant timely filed a petition for
review of that Order, and a supporting brief. The Respondent timely
filed its opposition brief to the petition for review.
While we acknowledge that an individual
must be employed by one of the nine employers listed in Section
101(3)(A)-(I) [2 U.S.C. §1301(3)(A)-(I))] of the Act
in order to be considered a “covered employee”, we do
not construe Section 101(3) of the Act as precluding a covered employee
from bringing a claim against more than one respondent under a joint-employer
or single-employer theory. The ruling in Moore v. Capitol Guide
Board, 982 F. Supp. 35 (D.D.C. 1997) does not require us to
hold otherwise. Similarly, in light of the general rule of statutory
construction that “[i]n determining the meaning of any Act
of Congress, unless the context indicates otherwise – words
importing the singular include and apply to several persons, parties,
or things; words importing the plural include the singular . . .”
1 U.S.C. §1, we do not construe Section 405(a) (2
U.S.C. §1405) as precluding a covered employee from naming
more than one employing office as a respondent in a complaint filed
with the Office of Compliance under the Act.
Accordingly, the issue to be resolved is whether
Respondent may be considered an “employing office” under
Section 101(9) (2 U.S.C. 1301(9))of the Act. Complainant
has alleged that Respondent meets the definition of an employing
office contained in Section 101(9)(C), which encompasses as an employing
office “any other office headed by a person with the final
authority to appoint, hire, discharge, and set the terms, conditions,
or privileges of the employment of an employee of the House of Representatives
or the Senate”.
The record before us is limited to the pleadings,
which include the allegation that there is an integrated relationship
between the Respondent and the Senate Sergeant at Arms and the Congressional
leadership. Based on the limited record, we are unable to determine
whether the Respondent is an employing office under Section 101(9)(C)
of the Act. The question was not amenable to dismissal without first
affording the Complainant the opportunity to develop a factual record.
We are remanding this matter to the Hearing
Officer to permit the Complainant an opportunity to prove her claim
that the Respondent constitutes an employing office as described
in Section 101(9)(C) of the Act. We have not reached any conclusion
as to whether the Respondent could constitute an employing office
under the Act. We hold only that the Hearing Officer should permit
limited discovery on the issue. Once this discovery is completed,
Respondent may reassert its position through a dispositive motion.
ORDER
Pursuant to Section 406(e) of the Congressional
Accountability Act and Section 8.01(d) of the Office’s Procedural
Rules, the Board remands this matter to the Hearing Officer in accord
with this opinion.
It is so ordered.
Issued, Washington, D.C.: June 4, 2004
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of June
2004, I delivered a copy of this Decision and Order of the Board
of Directors to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
Lawrence Z. Lorber & Stephanie L. Marn,
Esqs.
Proskauer Rose LLP
1233 20th Street, N.W., Suite 800
Washington, D.C. 20036.
Sam E. Taylor, Administrative Counsel
P.O. Box 15370
Washington, D.C. 20003
Facsimile Mail
Lawrence Z. Lorber & Stephanie L. Marn, Esqs.
Fax.No. (202)416-6899
Sam E. Taylor, Administrative Counsel
Fax. No. (301)989-3249
___________________
Kisha L. Harley
Office of Compliance
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