0120061770
02-08-2007
Donna R. Price, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (U.S. Marshals Service), Agency.
Donna R. Price,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(U.S. Marshals Service),
Agency.
Appeal No. 01200617701
Agency No. M05-0064
DECISION
Complainant filed a timely appeal with this Commission from the final
decision of the agency dated December 21, 2005, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that complainant's complaint was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
During the relevant period, complainant was employed by a subcontractor
to the agency (SC1) and worked as a General Clerk III at the Headquarters
of the agency. In a complaint dated September 27, 2005, complainant
alleged that the agency subjected her to discrimination on the bases of
race (Caucasian), sex (female), disability (learning), and reprisal for
prior EEO activity when it (1) denied her request for accommodation as
to training, (2) transferred her as a result of its accommodation denial,
(3) removed her from Federal service when she revealed a potential sexual
harassment claim that she could have filed, and (4) allowed a coworker
more time than complainant to learn the duties of her position.
The record revealed that, on August 12, 2004, the agency and a contractor
(CA1) developed a Project/Task Support Task Order in which CA1 agreed to
provide the agency three individuals "to perform administrative duties,"
for forty hours per week at the cost of labor hours with no opportunity
for overtime, through to September 30, 2007.2 Guidelines, in the record,
indicated that CA1's responsibilities included "salaries, benefits
(insurance, vacation); training (unless task related specialized training
is not available from contractor's sources); EEO guidance; counseling,
behavior/performance problems; other training/guidance/assistance
required by [the] employee . . . [and] supervision." In addition, CA1
was responsible for communicating an employee's absence to the agency
and inquiring whether it required a replacement for the absence period.
The agency was responsible for providing the work location with standard
office space and equipment. According to the EEO Counseling Report,
the agency's Project Officer for the Task Order stated that there
were performance concerns regarding complainant and she communicated
such to SC1. The Project Officer added that, on August 1, 2005, a
meeting was held with complainant, agency officials, and SC1 regarding
complainant's service under the Task Order. SC1 stated that the agency
could not counsel, discipline or terminate complainant so it communicated
its concerns to SC1 and SC1 attended the August 1 meeting to inform
complainant that she would no longer work on the Task Order. SC1 stated
that complainant was placed on another assignment subsequently.
In its December 21, 2005 final decision, the agency identified the issue
of complainant's complaint as termination and dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency stated that the Federal government is not
complainant's employer. Complainant filed the instant appeal. On appeal,
complainant stated that she submitted vacation requests to the agency,
received training and a laptop from the agency, had agency supervisors,
and received appreciation gifts from agency staff.
Before the Commission or the agency can consider whether the agency
has discriminated against complainant, it first must determine
whether complainant is an agency employee or applicant for employment.
The Commission has held that it will apply the common law of agency test
in order to determine whether a complainant should be deemed to be an
"employee." 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. See Zheng v. Dep't of Health and Human Services, EEOC Appeal
No. 01962389 (June 1, 1998); Ma v. Dep't 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)).
In the instant case, we find that the agency correctly determined
that complainant is neither an agency employee, nor an applicant for
employment for purposes of the laws enforced by the Commission, including
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Significantly,
the Task Order does not afford the benefits and circumstances normally
afforded with agency employment, joint or otherwise. Accordingly, we
AFFIRM the agency's dismissal of the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
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
February 8, 2007
__________________
Date
1 Due to a new Commission data system, the instant case has been
redesignated with the above-referenced appeal number.
2 We note that CA1 "subcontracted" the instant Task Order assignment to
SC1.
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01A60894
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061770