0120121009
05-31-2012
Crystal A. Friedman, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Crystal A. Friedman,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121009
Agency No. ARCELROCK11AUG03539C
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD)1 dated November 2, 2011, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was the owner of Crystal Cleaning Services Inc. (Crystal Cleaning) that provided janitorial services for the Agency's Corps of Engineers Table Rock Project Office, Dewey Short Visitor Center, Compound Maintenance Office/Restroom, Table Rock Power House, Table Rock Training Facility, and Trailhead Restroom in Branson, Missouri.
On October 15, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race/color (Caucasian/White), national origin (American), sex (female), age (45), and reprisal for prior protected EEO opposition activity under Title VII2 when:
1. on September 26, 2009, she was sexually assaulted by a volunteer in the visitor center's bathroom and Agency management took no action;3 and
2. thereafter she was subject to harassment, culminating in the Agency not exercising its option to renew her cleaning contract on March 31, 2011.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency.
The record shows that effective April 8, 2009, the Agency awarded a contract to Crystal Cleaning and Complainant as owner to provide janitorial services at the above facilities with four annual renewal options. The Agency exercised the first option effective April 1, 2010. Under the contract, Crystal Cleaning furnished all necessary labor, supplies, equipment, and transportation required to provide janitorial services. The contract required that Crystal Cleaning give the Agency identifying information on all its employees who performed work under the contact, that they be age 18 or older, and that the Agency had the right to conduct background checks on them and restrict the employment of anyone identified as a potential threat to the health, safety, security, or general well being of the project and its population. The contract required Crystal Cleaning to comply with Occupational Safety and Health Act (OSHA) and Corps of Engineers regulatory and manual safety requirements.
According to the counselor's report, Complainant indicated that the value of the contract averaged about $120,000 annually. The contract language anticipated multiple Crystal Cleaning employees providing janitorial services at multiple facilities/grounds requiring service seven days a week. In a letter to the Agency, Complainant referred to one of her "cleaners" in the ranger area. According to the counselor's report, Complainant indicated that the Agency asked her "crew" to help with the trash at the 50th anniversary celebration of the dam, which had large crowds, a duty outside the contract that was separately billed. Complainant, at one point, also wrote about her labor costs servicing the visitor center.
The contract required that janitorial services be performed at regular intervals, but did not specify times of the day. For example, janitorial services were required at the maintenance building office and restroom every Friday, three days a week on weekdays at the Project Office; and seven days a week at the visitor center, Trailhead Restroom, and various grounds and roadways. On October 2, 2009, shortly after the volunteer allegedly assaulted Complainant in the visitor center bathroom, she wrote a letter on Crystal Cleaning letterhead that Crystal Cleaning decided to clean the ranger office and visitor center between 5 PM and 6:30 AM to avoid any and all contact with employees and volunteers. Effective on or about April 1, 2010, the contract was bilaterally modified to set out that all indoor cleaning operations at the project office and visitor center be done between 5 PM and 6:30 AM, with all other cleanings having no restrictions on hours.
The Agency did not provide Complainant with benefits such as insurance, leave, or workers' compensation, and Crystal Cleaning was responsible for paying its own taxes. Crystal Cleaning submitted monthly invoices itemizing work completed, which were paid monthly. The invoices were broken down by number of days for each service, rate per day, and total.
The contract gave the Agency the power to terminate the contract for its own convenience or cause.
Complainant contended that Crystal Services was required to provide some services outside the scope of the contract. She averred that on September 26, 2009, she responded to an emergency call about an overflow in a visitor center bathroom, which was outside the scope of her contract, and was than assaulted by the volunteer who on other days and nights repeatedly called demanding service outside the scope of the contract. She also contended that in the ranger building carpet was replaced with tile, which was more labor intensive to clean, with no modification of the contract for the additional work until it was renewed in April 2010.
CONTENTIONS ON APPEAL
Complainant reiterates her allegations of discrimination, and contends that under an economic realities test, she is an employee of the Agency.
The Agency argues that under the common law agency test, which the Commission uses, Complainant is not an employee of the Agency. It argues that it did not control the means and manner of Complainant's performance by directing her daily activities and hours or requiring her to request leave, and that it did not give performance evaluations, or administer discipline. Citing facts recounted above, the Agency argues that the common law agency test factors show it did not have an employment relationship. Among many examples, the Agency observes that Crystal Cleaning was responsible for furnishing supplies, and equipment necessary to perform services, and argues the Agency did not have the right under the contract to assign any projects to Complainant or any other Crystal Cleaning employees. The Agency also argues that it had no power to discharge Crystal Cleaning employees, including Complainant, and Crystal Cleaning had other clients.
In reply to the Agency's opposition, Complainant argues that she was directed by Agency superiors in functions not related to her contract and outside the scope of her work. She gives the example of on the day of the assault being directed to perform non-contracted work in the visitor's center and after doing so, being instructed on what she could bill for the work.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer;
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation;
13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes);
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. In sum, the test to determine employment status often turns on whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Factors 1, 3, and 6 - 15 Indicate that Complainant is not an Employee
While only excerpts of the 120-page original contract between the parties are in the record, we find that the record shows that the Agency did not have the right to control when, where, and how Complainant performed her job, nor did it have the right to assign her additional projects or set the hours of work or duration of the job (factors 1, 6 and 7). As owner of Crystal Cleaning, Complainant had the right to assign any task to her crew, and did not have to personally perform any specific janitorial task. Moreover, as argued by the Agency, many tasks could be performed at any time, giving flexibility on arrival and departure time, and there is no indication in the record that the duration of tasks was prescribed. While the contract was amended to require some cleaning to be done between 5 PM and 6:30 AM, the record suggests this was done at Complainant's behest, and this is still a broad range. Complainant contended that in spite of the wording of the contract, she was assigned additional projects, citing as examples the Agency volunteer repeatedly calling her to take care of things in the visitor center, and a contract dispute over additional cleaning work caused by the Agency replacing carpet with tile in the ranger office. Even taking this into account, we find that factor 6 still does not indicate an employment relationship. Complainant does not contest that under the contract the Agency did not have the right to assign Crystal Cleaning additional work, and for the most part the Agency did not ask Crystal Cleaning to do so. In any event, Complainant had the right to assign any task to her crew.
It is uncontested that factors 3, 8, 9, 10, 11, 12, and 13 indicate that Complainant is not an employee. Crystal Cleaning furnished all the supplies, materials, equipment and transportation necessary to do the work, the Agency paid Crystal Cleaning based on monthly invoices for performing particular tasks, Complainant via Crystal Cleaning hired assistants, Complainant was engaged in her own business, and the Agency provided no benefits nor withheld taxes. The mission of the Corps of Engineers mission was to provide outdoor recreation, operate dams and restore, create, and enhance wetlands, and so forth, not provide janitorial services.
We also find, based on a reading of the contract and the nature of the parties relationship that they did not believe they were creating an employment relationship (factor 15). The contract was for Crystal Cleaning to provide services, not Complainant, and as a business owner providing services, we do not find it credible Complainant would view herself as an employee. Further, while the Agency had the power to terminate the contract and cease its working relationship with Complainant, she continued to own Crystal Cleaning, which had other clients. According to the counselor's report, after the termination of the contract, Crystal Cleaning still had $2,500 in monthly business. Hence, the Agency did not have de facto power to terminate Complainant's work relationship with Crystal Cleaning. International Union v. Clark, 2006 WL 2598046, 18 A.D. Cases 932 (D.D.C. 2006), EEOC Appeal No. 0120090933 (United States Marshals Service power to decide whether a particular Court Security Officer (CSO) could be removed from the contract for failure to meet the qualifications of the job was tantamount to removal power since an adverse agency determination against the CSO in most cases resulted in termination by the contractor).
Factors 2, 4 and 5
Factor 2 does not indicate Complainant's status as either an employee or an independent contractor. While janitorial work is not highly skilled, managing Crystal Cleaning required at least a moderate level of skill or expertise. As we are unclear on the level of expertise required, we find factor 2 does not point to Complainant's status.
Regarding factors 4 and 5, Complainant performed work on the Agency's premises, and there was a continuing work relationship between Complainant and the Agency. These factors are among those that suggest an employee relationship.
Based on a weighing of all the Ma factors, we find that the Agency did not exercise sufficient control over Complainant's job to qualify as her employer for the purpose of the EEO complaint process. Accordingly, the Agency's dismissal of the complaint in this matter is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 31, 2012
__________________
Date
1The Agency is cautioned to update the appeal rights in its FAD. In the FAD, the Agency advised Complainant that an appeal to the EEOC may be made to P.O. Box 19848, Washington, D.C. 20036, a long outdated address that no longer has forwarding service to our correct address. The correct address is in the letterhead of this decision. This outdated contact information delayed Complainant's appeal.
2 In its FAD, the Agency defined the complaint as only containing the basis of sex discrimination. In her complaint, Complainant also included the above bases.
3 Complainant wrote that the volunteer came up from behind her inside the bathroom stall and put his left arm around her neck and his right arm around her waist, and his genitals pressed into her backside and she could feel his breath on the nape of her neck.
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0120121009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121009