01a42472
05-11-2005
Danielle M. Kauffman, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Danielle M. Kauffman v. Department of State
01A42472
May 11, 2005
.
Danielle M. Kauffman,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A42472
Agency No. 02-49
Hearing
No. 100-2003-07908X
DECISION
On August 7, 2002, complainant filed a formal EEO complaint wherein
she claimed that she was discriminated against on the bases of her sex
(female) and reprisal when she was sexually harassed by her supervisor
beginning in January or February 2002 and on a continuing basis through
July 2002. The agency accepted the complaint for investigation.
Subsequent to the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ). The agency filed a Motion to Dismiss
for Failure to State a Claim. The agency argued in its Motion that
complainant is not an employee of the agency, but rather an employee of
Integrated Management Services, Inc. (IMSI).
The AJ granted the agency's Motion to Dismiss for Failure to State a
Claim. The AJ found that complainant provided services to the agency as
a third party contractor, and not as an employee of the agency. The AJ
noted that IMSI provides services to the agency under a contractual
arrangement and that complainant served as a Financial and Procurement
Specialist in the agency's Bureau of Diplomatic Security, Office of
Domestic Operations. The AJ stated that IMSI paid complainant's salary,
retirement benefits, life insurance, health insurance, and leave. The AJ
further noted that IMSI provided complainant with her annual performance
appraisals and periodic salary reviews. According to the AJ, IMSI
retained the authority to discipline its employees and under the terms
of the written employment contract between complainant and IMSI, either
party was entitled to terminate the employment relationship at will.
The AJ further noted that the contract between the agency and IMSI
authorized the agency to request that a particular employee be removed
from providing services under the IMSI-agency contract, but that only IMSI
had the authority to terminate complainant's employment. The AJ cited
the fact that on at least two occasions, agency officials contacted IMSI
to criticize complainant's interpersonal skills and requested that IMSI
take corrective action. The AJ reasoned that the functions performed
by complainant are tangential to the agency's foreign affairs mission
and not integral to the business of the agency. Based on the foregoing,
the AJ found that despite the fact that agency officials issued work
assignments to complainant and provided her some level of counseling and
direction, the agency lacked the requisite control over the means and
manner of complainant's work to confer the status of an agency employee.
By final order dated February 5, 2004, the agency determined that it
would fully implement the AJ's decision and therefore it dismissed the
complaint on the grounds of failure to state a claim.
On appeal, complainant contends that her work was supervised on a regular
basis by her agency supervisor and to a greater degree than by IMSI.
Complainant maintains that the agency controlled the means and the
manner of her work performance on a daily basis. Complainant notes
that the agency furnished her with office space at the agency and
office supplies. Complainant further argues that the agency should
be considered a joint employer of her based on the means and manner of
control of her daily work.
In response, the agency asserts that complainant's joint employer
contention is without merit. The agency asserts that IMSI paid
complainant's salary, retirement benefits, life insurance, health
insurance, and leave; required complainant to submit time sheets;
established complainant's hours of work; provided annual performance
appraisals and periodic salary reviews; and retained authority to
discipline complainant. The agency states that complainant had an
on-site IMSI supervisor and a higher-level project manager from IMSI
visited the office weekly. The agency further asserts that only IMSI
had the authority to terminate complainant's employment. The agency
states that complainant's argument of third-party interference cannot be
brought against a federal agency under Title VII. The agency discounts
complainant's claim that she was lulled into inaction by the agency's
acceptance of the complaint for investigation. According to the agency,
a determination as to whether dismissal of the complaint would be
appropriate could not be made until after an investigation was performed.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June
1, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318,
323-24 (1992)). 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 usually is 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. See id.
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. The Commission
in Ma also noted that prior applications of the test established in
Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), using many of the
same elements considered under the common law test, was not appreciably
different from the common law of agency test. See id.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. Complainant does not dispute that her salary
was directly paid by the contractor IMSI rather than by the agency.
Complainant has failed to refute the agency's position that it was IMSI
that provided her with annual leave and other benefits. Additionally,
complainant has not refuted the agency's assertion that IMSI solely had
the authority to terminate her employment. Further, it is evident that
IMSI had authority to control the means and manner of complainant's work.
We further find that the agency was not a joint employer of complainant
in light of it not having sufficient control over the means and manner
of complainant's work. See Enforcement Guidance: Application of EEO
Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997).
Based on the record, we find that complainant was not an agency employee.
Accordingly, the agency's decision dismissing the complaint on the grounds
of failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1) was
proper and is AFFIRMED.
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
May 11, 2005
__________________
Date