0120102807
11-12-2010
James Hawkins, Complainant, v. Adrienne Poteat, Acting Director, Court Services and Offender Supervision Agency, Agency.
James Hawkins,
Complainant,
v.
Adrienne Poteat,
Acting Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120102807
Agency No. F10003
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 27, 2010, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of disability (quadruple bypass) and age (67 years at time of incident) when:
1. Complainant was removed from his position as Security Officer on December 13, 2008.
The Agency dismissed the claim for untimely EEO Counselor contact and for failure to state a claim, on the grounds that Complainant is not a Federal employee but a contractor working for MVM Security (MVM). The Agency noted that the alleged discriminatory event occurred in December 2008 but Complainant did not contact an EEO Counselor until November 9, 2009.
On appeal, Complainant first argues that the issue of whether or not Complainant may be considered a Federal employee is not a jurisdictional issue but a merits issue, pursuant to the U.S. Supreme Court's decision in Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006), and hence the Agency's dismissal for failure to state a claim was improper. Complainant also argues that the Agency failed to present sufficient facts to determine whether or not Complainant should be viewed as a contractor or a Federal employee. In addition, Complainant argues, dismissal for failure to state a claim was improper because the Agency failed to recognize that, assuming Complainant's allegation is true, as the Agency must when dismissing for failure to state a claim, his allegation that the Agency directed MVM to terminate him states a claim of discrimination. Complainant next argues that his Counselor contact should be viewed as timely because he only learned that the Agency allegedly directed the Agency to terminate him on October 2, 2009 and hence his November 9, 2009 contact was timely. Finally, Complainant argues that the Agency began an investigation on the merits of the matter and that once an Agency does this, it does not have the authority to dismiss a complaint.
The Agency on appeal argues that Arbaugh is inapplicable to the instant case because that case addressed whether or not the fifteen employee requirement of Title VII should be applied so as to give the Federal District Court jurisdiction over the employer, whereas in the instant case it is undisputed that both the Agency and MVM fall under laws enforced by the Commission. The Agency next argues that it provided sufficient evidence to support a finding that Complainant was a Contractor and not an Agency employee or joint employee, and further, that Complainant failed to meet his burden of showing that he was not a Contractor or that he should be viewed as a joint-employee. Finally, the Agency argues that it correctly found that Complainant's Counselor contact was untimely and that his reasonable suspicion regarding the Agency's alleged involvement in his removal should have been triggered at the time of the removal in December 2008.
ANALYSIS AND FINDINGS
In determining whether Complainant was an agency employee or applicant for employment within the meaning of Section 717(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16(a) et. seq., the Commission has applied the common law of agency test. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). Specifically, the Commission looks at 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 Ma, supra. 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 No. 915.002 (December 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov.), 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 the 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 Guidance, supra at 11.
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 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), 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
November 12, 2010
__________________
Date
2
0120102807
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102807