0120073212
11-06-2007
Charles L. Ferebee, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Charles L. Ferebee,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073212
Agency No. 07-00189-00665
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 11, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The record reflects that during the relevant time, complainant was a
Warehouse Specialist through a corporate entity identified as Management
Consulting, Inc. (hereinafter referred to as "MANCON."), a subcontractor
of Prolog, Inc. Complainant worked for the agency's Fleet and Industrial
Supply Center (FISC), Norfolk Naval Shipyard in Norfolk, Virginia.
In the instant complaint, filed on March 16, 2007, complainant claimed
that he was subjected to discrimination on the bases of race and in
reprisal for prior EEO activity when:
FISC management failed to investigate his complaints of discrimination
filed on July 1, 2006 and August 8, 2006; and he was subjected to a
hostile work environment with respect to assignments of duties.
In its June 11, 2007 final decision, the agency dismissed complainant's
complaint for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). The agency determined that complainant was not a Federal
employee, and that he was instead a contractor, not covered by Title
VII.
On appeal, complainant contends that he is an independent contractor
of MANCON. Complainant contends, however, that MANCON and the agency
"are acting as 'joint employers' because FISC serving as the client
controls when, where, and how I as a contractor perform my job."
The record contains a document identified as "Statement of Work" between
the agency and MANCON (Contract No. N00189-06-D-0052). The record
reflects that according to the contract, MANCON would provide supply
and logistics support including "requisition processing, storage, and
warehousing, transportation/shipping, information technology support, and
vehicle material handling equipment." This contract notes that MANCON
would provide supply and logistics support from May 1, 2006 through
September 30, 2006, to include two, 12- month option years. The record
further reflects that contractor personnel, MANCON, "performing services
under this order will be controlled, directed and supervised at all
times by management personnel of the contractor."
The record also contains a copy of MANCON Hampton Roads Regional Manager
(RM)'s response to the agency's questionnaire concerning complainant's
complaint. According to RM, complainant's supervision remained the
responsibility of MANCON; and that MANCON monitored the performance
of its employees, including complainant, effected any disciplinary
actions and dealt with conduct issues. RM further stated that MANCON
paid complainant's salary and provided him with benefits and leave;
and withheld complainant's taxes. Furthermore, the record in
the case reflects that during the EEO counseling process, complainant
identified himself as a contractor employee of the agency.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Co. et al v. Darden,
503 U.S. 318, 323-24 (1992)). Specifically, the Commission will look
to the following non-exhaustive list of factors: (1) the extend of
the employer's right to control the means and manner of the worker's
performance; (2) the kind of occupation, with reference to whether the
work is usually done under the direction of a supervisor or is done
by a specialist without supervision; (3) the skill required in the
particulate occupation; (4) whether the "employer" or the individual
furnishes the equipment used and the place of work; (5) the length of
time the individual has worked; (6) the method of payment, whether by
time or by the job; (7) the manner in which the work relationship is
terminated, i.e., by one of both parties, with or without notice and
explanation; (8) whether annual leave is afforded; (9) whether the work
is an integral part of the business of the "employer;" (10) whether the
worker accumulates retirement benefits; (11) whether the "employer" pays
social security taxes; and (12) the intention of the parties. In Ma,
the Commission noted that the common-law test contains, "no shorthand
formula or magic phrase that can be applied to find the answer...[A]ll
of the incidents of the relationship must be assessed and weighed with
no one factor being decisive." Id.
Furthermore, under the Commission's Enforcement Guidance: Application
of EEO Laws to Contingent Workers Placed by Temporary Employment
Agencies and Other Staffing Firms, EEOC Notice 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance"), we have also recognized that
a "joint employment" relationship may exist where both the agency and the
"staffing firm" may be deemed employers. Similar to the analysis set
forth above, a determination of joint employment requires an assessment
of the comparative amount and type of control the "staffing firm" and the
agency each maintain over complainant's work. Thus, a federal agency will
qualify as a joint employer of an individual if it has the requisite means
and manner of control over the individual's work under the Ma criteria,
whether or not the individual is on the federal payroll. See Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Based on these legal standards and criteria, we find that the agency did
not exercise sufficient control over the complainant's position to qualify
as the employer or joint employer of complainant. See generally, Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
The agency's dismissal was appropriate and we AFFIRM the agency's final
decision.
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
November 6, 2007
__________________
Date
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0120073212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073212
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