B-168161, JUN. 19, 1970

B-168161, JUN. 19, 1970

TO CECIL DRIVER:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 18 AND MARCH 21, 1970, CONCERNING ALLEGED DISCRIMINATORY PRACTICES BASED UPON SEX IN THE APPLICATION OF SECTION 7 OF PUBLIC LAW 86-91, 73 STAT. 213, 216, WITH PARTICULAR REFERENCE TO THE CASES OF MRS. HENRIETTA PELLECCHIA AND MRS. RUSSELLE HEDLEY.

SECTION 7 PROVIDES, IN PART, THAT:

"(A) UNDER REGULATIONS WHICH SHALL BE PRESCRIBED BY OR UNDER AUTHORITY OF THE PRESIDENT, EACH TEACHER (OTHER THAN A TEACHER EMPLOYED IN A SUBSTITUTE CAPACITY) SHALL BE ENTITLED, IN ADDITION TO BASIC COMPENSATION, TO QUARTERS, QUARTERS ALLOWANCE, AND STORAGE AS PROVIDED BY THIS SECTION.

"(B) EACH TEACHER (OTHER THAN A TEACHER EMPLOYED IN A SUBSTITUTE CAPACITY) SHALL BE ENTITLED, FOR EACH SCHOOL YEAR FOR WHICH HE PERFORMS SERVICES AS A TEACHER, TO QUARTERS OR A QUARTERS ALLOWANCE EQUAL TO THOSE AUTHORIZED BY THE ACT OF JUNE 26, 1930 (5 U.S.C. 118A)." (NOW 5 U.S.C. 5912)

THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) OF THE DEPARTMENT OF STATE, ISSUED PURSUANT TO DELEGATED AUTHORITY AND IN EFFECT FROM OCTOBER 13, 1969, TO AUGUST 11, 1968, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"031.13 MARRIED WOMEN EMPLOYEES

"A. A QUARTERS ALLOWANCE MAY BE GRANTED TO A MARRIED WOMAN EMPLOYEE RESIDING WITH HER HUSBAND (OR, IF NOT LEGALLY SEPARATED, IS WORKING IN SUCH PROXIMITY THAT A COMMON DWELLING COULD BE MAINTAINED) ONLY IF

"(1) SHE IS THE MEMBER OF THE HOUSEHOLD WHOSE JOB DETERMINES THE LOCATION OF THE FAMILY AT THE POST OR IN THE AREA, AND

"(2) SHE IS THE ONLY MEMBER OF THE HOUSEHOLD RECEIVING A QUARTERS ALLOWANCE FROM THE UNITED STATES GOVERNMENT.

"B. IF A MARRIED WOMAN EMPLOYEE MEETS THE PROVISIONS OF SECTION

*** 031.13A SHE MAY BE GRANTED THE 'WITH FAMILY' RATES OF ALLOWANCES ONLY IF HER HUSBAND IS 51 PERCENT DEPENDENT UPON HER FOR SUPPORT. OTHERWISE, SHE MAY BE GRANTED ONLY THE 'WITHOUT FAMILY' RATE OF TEMPORARY LODGING, LIVING QUARTERS, POST, FOREIGN TRANSFER AND HOME SERVICE TRANSFER ALLOWANCE."

THE ABOVE REGULATIONS WERE REVISED AUGUST 11, 1968, TO READ AS FOLLOWS:

"031.13 MARRIED EMPLOYEES

"A QUARTERS ALLOWANCE MAY BE GRANTED TO A MARRIED EMPLOYEE RESIDING WITH HIS OR HER SPOUSE (OR, IF NOT LEGALLY SEPARATED, IS WORKING IN SUCH PROXIMITY THAT A COMMON DWELLING COULD BE MAINTAINED) ONLY IF

"(1) HE OR SHE IS THE MEMBER OF THE HOUSEHOLD WHOSE JOB DETERMINES THE LOCATION OF THE FAMILY AT THE POST OR IN THE AREA, AND

"(2) HE OR SHE IS THE ONLY MEMBER OF THE HOUSEHOLD RECEIVING A QUARTERS ALLOWANCE FROM THE UNITED STATES GOVERNMENT."

WE NOTE THAT THE REGULATIONS PRIOR TO OCTOBER 13, 1963 (AT LEAST FROM APRIL 2, 1961), WERE MORE RESTRICTIVE IN THAT THEY PRECLUDED PAYMENT OF A LIVING QUARTERS ALLOWANCE TO A MARRIED FEMALE EMPLOYEE WHEN HER HUSBAND WAS PHYSICALLY AND MENTALLY CAPABLE OF SELF SUPPORT.

WHILE WE RECOGNIZE IT CAN BE ARGUED THAT THE REGULATIONS AS THEY EXISTED PRIOR TO AUGUST 11, 1968, WERE DISCRIMINATORY IN THAT THEY APPLIED ONLY TO MARRIED WOMEN, NEVERTHELESS, WE MUST DECLINE TO MAKE ANY DETERMINATION WITH RESPECT THERETO AT THIS TIME. THE REGULATIONS WERE IN EFFECT FOR MANY YEARS AND APPLIED WITHOUT ANY QUESTION BEING RAISED AS TO THEIR DISCRIMINATORY ASPECT. THEY WERE AMENDED ON AUGUST 10, 1968, SO AS TO BE EQUALLY APPLICABLE TO MALES AS WELL AS FEMALES AND FROM THAT DATE WOULD NOT APPEAR TO BE SUSCEPTIBLE TO ANY ALLEGATION OF DISCRIMINATION. THERE ARE PENDING IN THE COURT OF CLAIMS SEVERAL CASES INVOLVING MARRIED EMPLOYEES OF THE FEDERAL GOVERNMENT IN THE CANAL ZONE WHEREIN IT IS ALLEGED THAT A REGULATION DENYING TROPICAL DIFFERENTIAL TO MARRIED WOMEN EMPLOYEES UNLESS THEIR HUSBANDS ARE INCAPABLE OF SELF SUPPORT, OR 51 PERCENT DEPENDENT UPON THEIR WIVES, OR ARE LEGALLY SEPARATED, IS DISCRIMINATORY AND, THEREFORE, INVALID. FOR EXAMPLE SEE AGNES M. ANDERSON ET AL. V. UNITED STATES, CT. CL. NO. 206 68, FILED JULY 19, 1968. FINALLY, THE EXECUTIVE ORDER PRECLUDING DISCRIMINATION IN FEDERAL EMPLOYMENT BECAUSE OF SEX WAS NOT ISSUED UNTIL OCTOBER 17, 1967. (E.O. 11375.)

APART FROM ANY QUESTION OF DISCRIMINATION, HOWEVER, THE FACTS OF RECORD INDICATE THAT APPLICATION OF THE REGULATIONS IN THE CASE OF MRS. PELLECCHIA WAS ARBITRARY AND CONTRARY TO THE UNDERLYING INTENT AND POSSIBLY SO IN THE CASE OF MRS. HEDLEY.

IN 1960, AT THE TIME MRS. HEDLEY BECAME INTERESTED IN SECURING A TEACHING POSITION IN THE HEIDELBERG AREA AMERICAN SCHOOLS, SHE WAS ALREADY UNDER CONTRACT AS A REGULARLY EMPLOYED TEACHER WITH THE BOARD OF EDUCATION, CITY OF NEW YORK. HAVING BEEN INFORMED BY PERSONS KNOWLEDGEABLE ABOUT OVERSEAS TEACHER EMPLOYMENT SHE, ALONG WITH HER HUSBAND, TRAVELED TO EUROPE IN AUGUST 1960, PRIOR TO THE START OF THE FALL SEMESTER TO SECURE A TEACHING POSITION IN THE HEIDELBERG AREA SCHOOLS, WHILE AT THE SAME TIME RETAINING HER POSITION IN THE NEW YORK CITY SCHOOL SYSTEM. IN SEPTEMBER 1960, MRS. HEDLEY WAS APPOINTED AS A TEACHER AND IT WAS AT THIS TIME THAT SHE RESIGNED HER POSITION WITH THE BOARD OF EDUCATION, CITY OF NEW YORK. NOVEMBER 1960, MRS. HEDLEY'S HUSBAND ENTERED THE UNIVERSITY OF HEIDELBERG MEDICAL SCHOOL. MRS. HEDLEY RESIGNED FROM THE TEACHING POSITION IN GERMANY ON DECEMBER 7, 1968.

THE HEDLEYS' SOLE TAXABLE INCOME (AT LEAST FROM THE BEGINNING) WAS MRS. HEDLEY'S AND, THEREFORE, IN THE ABSENCE OF CONTRADICTORY EVIDENCE, IT IS UNREASONABLE TO CONCLUDE OTHER THAN THAT MR. HEDLEY'S ATTENDANCE AT HEIDELBERG UNIVERSITY WAS DEPENDENT UPON THE LOCATION OF MRS. HEDLEY'S JOB, AND THAT HE WAS 51 PERCENT DEPENDENT UPON HER FOR SUPPORT. THEREFORE, ASSUMING THESE OR SIMILAR CONDITIONS CONTINUED FROM OCTOBER 13, 1963, TO THE DATE OF HER RESIGNATION, WE SEE NO REASON WHY MRS. HEDLEY SHOULD HAVE BEEN DENIED A QUARTERS ALLOWANCE.

WITH RESPECT TO MRS. PELLECCHIA'S CLAIM FOR LIVING QUARTERS ALLOWANCE AND FOREIGN POST DIFFERENTIAL FOR THE PERIOD AUGUST 11, 1968, THROUGH FEBRUARY 22, 1969, THE RECORD SHOWS THAT MISS HENRIETTA SCHUTT (LATER MRS. PELLECCHIA), WAS RECRUITED FOR A TEACHING POSITION AT CLARK AIR FORCE BASE, EFFECTIVE JULY 30, 1967, UNDER CIRCUMSTANCES ENTITLING HER TO LIVING QUARTERS ALLOWANCE AND POST DIFFERENTIAL. ON JANUARY 20, 1968, MISS SCHUTT MARRIED MR. PELLECCHIA WHO WORKED FOR AIR AMERICA, INC. BECAUSE MR. PELLECCHIA HAD BEEN IN THE AREA LONGER THAN MISS SCHUTT AND BECAUSE HIS INCOME WAS GREATER THAN HERS, IT WAS ADMINISTRATIVELY CONCLUDED THAT IT WAS HIS JOB RATHER THAN HERS WHICH DETERMINED THE LOCATION OF THE FAMILY IN THE AREA.

THE UNCONTROVERTABLE FACT OF THE MATTER IS, HOWEVER, THAT THE PELLECCHIA FAMILY WAS IN THE AREA OF CLARK AIR FORCE BASE BECAUSE MR. PELLECCHIA AND MISS SCHUTT MET THERE. IT IS ONE THING TO ASSERT THAT MRS. PELLECCHIA, OR ANY OTHER PERSON, IS IN AN AREA BY REASON OF HER HUSBAND'S JOB WHERE SHE HAS ACCOMPANIED HER HUSBAND TO HIS JOB SITE. IT IS QUITE ANOTHER TO MAKE THAT ASSERTION WHERE SHE INDEPENDENTLY PRIOR TO HER MARRIAGE ARRIVED AT THE SITE IN CONNECTION WITH HER OWN EMPLOYMENT AND CHOSE TO MARRY WHILE THERE. IN THE LATTER CASE HER PRESENCE IN THE AREA IS AT LEAST EQUALLY AS MUCH RELATED TO HER EMPLOYMENT AS TO HER HUSBAND'S.

ACCORDINGLY, INSTRUCTIONS HAVE BEEN ISSUED TO ALLOW MRS. PELLECCHIA THE "WITH FAMILY" QUARTERS ALLOWANCE (PLUS FOREIGN POST DIFFERENTIAL) ON AND AFTER AUGUST 11, 1968.

MRS. HEDLEY HAS NOT FILED A CLAIM DIRECTLY WITH THIS OFFICE. HOWEVER, WE ARE TRANSMITTING THE PAPERS YOU HAVE FURNISHED TO THE SECRETARY OF THE ARMY WITH ADVICE THAT HER CLAIM BE RECONSIDERED IN LIGHT OF THE CONCLUSION STATED HEREIN AND THAT PAYMENT BE MADE TO HER OF ANY QUARTERS ALLOWANCE FOUND DUE FROM OCTOBER 13, 1963, TO DECEMBER 7, 1968.

COPIES OF THIS LETTER ARE BEING SENT TO CONGRESSWOMAN PATSY T. MINK AND TO THE SECRETARY OF THE ARMY.