0120070673
03-13-2007
Joan L. Johnston, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Joan L. Johnston,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070673
Agency No. 06-67353-01512
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 22, 2006, dismissing her 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed for failure to state a claim.
In a complaint dated August 18, 2006, complainant alleged that the agency
subjected her to hostile work environment harassment on the basis of
disability (Multiple Sclerosis) and such harassment ultimately resulted
in her termination.1 Complainant explained that she began working
at an agency annex located in Virginia on September 26, 2006, under a
contractor, and, at that time, was tasked with developing the technical
guideline and policies for a data architecture. Complainant stated
that she asked an agency Contracting Officer Technical Representative
(S1) and the Vice-President/Program Manager for the contractor (CT1)
to allow her to telecommute on an intermittent basis and they allowed
her to do so because complainant worked alone as there was no other team
member who held technical expertise on data architecture development,
the work was conducive to a work site other than an on-site office, and
the contractor provided laptops to all employees. Further, complainant
stated that she disclosed her medical condition on her employment
forms and then, on October 31, 2005, verbally informed CT1 and other
management about her impairment. Complainant alleged that, after she
informed CT1 of her impairment, his attitude and that of S1 changed to
one of hostility and distance. She added that CT1 and other contractor
management questioned her impairment and her need to telecommute, and
informed her that she could no longer do so. Complainant stated that,
on December 8, 2005, she contacted CT1 to request leave for a doctor's
visit and was instructed not to report for work. Specifically, complainant
alleged that discrimination occurred when CT1 no longer approved her
request for accommodation (telecommuting) and terminated her employment.
She stated that CT1 indicated that the agency representative, S1,
supported or prompted the actions.
In a memorandum to an agency EEO representative, S1 stated that
a Technology Contractor agreed to provide geospatial consulting
services to the agency; the agency did not control the means or
manner of complainant's performance; the geospatial services contract
required expertise in geospatial information, services and systems;
the agency provided a work-space for on-site work to complainant and
the contractor provided all other equipment; complainant worked on-site
for the contractor for two months; the agency did not provide pay or
benefits to complainant nor did it pay any taxes on her behalf; and that
complainant's work was not an integral part of the agency's business.
An EEO Counselor's Report indicates that S1 stated that he did not handle
complainant's request for accommodation, her request for leave, or her
termination. Also, the record contains a Geospatial Program Task Order
Statement of Work, dated February 1, 2005, indicating that a contractor
would provide all services, personnel, personnel supervision, materials,
equipment, and transportation necessary to accomplish the requirements
of the statement of work and that the agency would incrementally fund
the contract.
In its September 22, 2006 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency stated that complainant is not an agency employee and, thus,
does not have standing to file a formal EEO complaint with the agency.
Complainant filed the instant appeal. On appeal, complainant stated that
the agency failed to investigate all relevant aspects of her employment
relationship, including field specialty, the agency determining place
of work, and S1's demand for her termination.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.106(a).
In order to determine whether the agency's dismissal decision was correct,
the Commission must decide whether the complainant was an agency employee
or applicant for employment within the meaning of its regulations. The
Commission has applied the common law of agency test to determine
whether an individual is an agency employee. 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 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 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.2 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 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.
Based on the legal standards and criteria set for herein, we find that
the agency did not exercise sufficient control over the complainant's
position to qualify as the employer or joint employer of complainant.
See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006). Accordingly, we find that the agency's dismissal was
appropriate and we AFFIRM the agency's final decision.
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
March 13, 2007
__________________
Date
1 We note that, on March 28, 2006, complainant filed a charge of
discrimination in the private sector process on the same matter.
2 Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers may
be hired by "staffing firms" which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
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0120070673
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070673