01996720
04-26-2001
D. J. Gallegos, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
D. J. Gallegos v. Department of the Air Force
01996720
April 26, 2001
.
D. J. Gallegos,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01996720
Agency No. 5CIC99011
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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 the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
filed a formal complaint in which she alleged discrimination on the
basis of reprisal (reporting an employee who removed office furniture
after receiving approval from a supervisor and expressing discontent
via a memorandum she wrote dated February 5, 1999, wherein she expressed
improper treatment of her and her client) and age (46) when she was not
selected for continued employment on March 25, 1999, with the agency's
new contractor that had replaced the former one that employed her.
For the following reasons, the Commission AFFIRMS the agency's final
order dismissing complainant's complaint.
The record reveals that complainant, a Family Advocacy Treatment Manager
at the agency's Holloman Air Force Base in New Mexico, filed a formal
EEO complaint with the agency on July 1, 1999, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant was informed that her complaint was
being dismissed for failure to state a claim. Specifically, the agency
found that complainant was not an agency employee nor an applicant for
agency employment. It is from this decision that complainant appeals.
In its FAD, the agency concluded that complainant failed to state a
claim and dismissed the non-selection issue raised in the formal EEO
complaint. On appeal, complainant contends that she was an employee of
the agency for numerous reasons, including: malpractice suits against
contract employees are processed in the same manner as general schedule
employees or military personnel, only military personnel could sign her
time sheet, only military personnel could approve her leave requests,
and her security clearance was performed by the agency. The agency
requests that we affirm its FAD.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in pertinent part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). Claims against agencies made by independent contractors,
however, fail to state a claim. See Mallory v. Environmental Protection
Agency, EEOC Appeal No. 05950142 (April 11, 1996). Thus, before the
Commission can consider whether the agency has discriminated against
complainant in violation of Title VII and/or the ADEA, we must determine
whether complainant is an agency employee or applicant for employment.
The Commission has applied the common law of agency test to determine
whether an individual 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)). This same test applies to claims brought
under the ADEA. Specifically, the Commission will look to the following
non-exhaustive list of factors: (1) the extent 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 particular 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 or 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. Id.
We find that the complaint's claims were properly dismissed pursuant
to EEOC regulations for failure to state a claim because the agency
correctly found that complainant was a contract employee and not directly
employed by the agency. The record evidence establishes that complainant
entered into an employment agreement with Saratoga Medical Center, Inc.,
(Saratoga), which provided that it would �terminate immediately upon
termination of [Saratoga's] contract with the Air Force in whole or in
part.� The Agreement further states that �[s]ecurity of this job
is dependent upon the Government's continuity of the Family Advocacy
Contract.� The Agreement also covered complainant's leave accrual and
health and insurance benefits.
The record evidence clearly indicates that complainant's salary
was determined by Saratoga and not the agency. Moreover, her
annual appraisals from 1996 - 1998, which included her annual salary
increases, were completed by Saratoga. In point of fact, at the bottom
of complainant's first appraisal dated August 16, 1996, Saratoga's Vice
President of Operations wrote: �your appraisal is a bit abbreviated since
[the agency] doesn't know you yet. But � I do. Thanks for doing such a
great job!� In addition, in a letter dated September 3, 1997, Saratoga
thanks complainant �for being such a terrific representative of Saratoga!�
Further, we note that an internal, agency memorandum dated September
14, 1995, unambiguously requested that the relevant office issue
provisional credentials for complainant pursuant to the �conditions
with the contract . . . that the position must be filled by October 1,
1995.� The contractor relationship between the agency and Saratoga is
further highlighted in the agency's memorandum dated September 27, 1995,
where the agency requests an identification card for complainant as a
�contract employee with Saratoga.�
For these reasons, the undisputed evidence establishes that complainant
was an employee of Saratoga and not the agency. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date