01A44065_r
09-21-2004
Carol L. Austin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol L. Austin v. United States Postal Service
01A44065
September 21, 2004
.
Carol L. Austin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44065
Agency No. 6P-000-0011-04
DISMISSAL OF APPEAL
According to the record, complainant applied for a position with
"Manpower, Inc.,"(herein referred to as �Manpower�) to work as a contract
EEO investigator at the agency.<1> When Manpower rejected her application
during a preliminary screening process on November 7, 2003, complainant
initiated EEO counseling on December 23, 2003. Complainant claimed that
she was the victim of unlawful employment discrimination on the bases of
age and in reprisal for prior EEO activity. Complainant then filed a
Charge of Discrimination against Manpower at the local Commission office
on or about January 30, 2004.
By notice dated April 26, 2004, the agency acknowledged complainant's
request for EEO counseling; however, the agency advised complainant that
it could not be processed by the agency due to a lack of jurisdiction.
Specifically, the agency notified complainant that her complaint was
against Manpower, an independent contractor, and must be filed as a
Charge of Discrimination with the local Commission office.
On May 29, 2004, complainant filed the instant appeal, arguing that
she has standing to file an EEO complaint against the agency regarding
her non-selection.
In response, the agency repeats that complainant's cause of action is
solely against Manpower, and that proper legal recourse is to file a
Charge of Discrimination at the local Commission office. Furthermore,
the agency declares that the Charge already filed by complainant against
Manpower was accepted for investigation. The agency requests that the
Commission deny complainant's appeal.
The EEO complaint process covers only aggrieved �employees� and applicants
for employment. See 29 C.F.R. � 1614.103. The test for determining
whether an individual is an employee for purposes of protection under
the discrimination statutes is set forth in Spirides v. Reinhardt,
613 F.2d 826 (D.C. Cir. 1979). In that case, the court stated that the
determination of whether an individual is an employee or an independent
contractor for purposes of Title VII involves an analysis of the economic
realities of the work relationship. The court further stated that the
most important factor to consider is the employers right to control the
means and the manner of the worker's performance. Id at 831.
As an initial matter, we find that the agency should have processed this
matter by completing EEO counseling, and by issuing complainant a Notice
of Right to File a Formal Complaint. Nonetheless, we determine that the
Commission has no jurisdiction over the captioned matter, such that this
appeal must be DISMISSED for the reasons set forth below.
Upon review, based on the terms of the contracts between the agency
and Manpower, we find that Manpower is a �staffing firm,� engaged by
the agency to process applications for contract EEO investigators, and
to provide the agency with their services, as �contingent workers.� See
Enforcement Guidance: Application of EEO Laws To Contingent Workers Placed
by Temporary Employment Agencies and Other Staffing Firms, EEOC 915.002,
December 3, 1997 (Guidance). The record further reflects that complainant
submitted an application for employment as a contingent worker with
Manpower, and not with the agency. Under these circumstances, we find
that complainant is not an aggrieved employee or applicant for employment
pursuant to 29 C.F.R. � 1614.103, concerning the non-selection at issue,
and has no standing in this matter.
Finally, we find that the record supports a finding that complainant
filed a Charge of Discrimination in January 2004 concerning the same
matter raised herein; and, that the agency, in its appeal statement,
indicates that the Charge was accepted for investigation. Therefore,
we find that jurisdiction of this matter resides with the EEOC office
investigating the Charge.
In conclusion, for the reasons set forth above, we DISMISS the captioned
appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 21, 2004
__________________
Date
1According to complainant's appeal statement,
she is currently employed by the agency as a Manager in its Portland
District EEO Dispute Resolution office, and the record reflects that
she encumbered this position at the time she submitted her application
to Manpower.