Kim Gallagher, Complainant,v.Donald Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionFeb 6, 2001
01a10983 (E.E.O.C. Feb. 6, 2001)

01a10983

02-06-2001

Kim Gallagher, Complainant, v. Donald Evans, Secretary, Department of Commerce, Agency.


Kim Gallagher v. Department of Commerce

01A10983

February 6, 2001

.

Kim Gallagher,

Complainant,

v.

Donald Evans,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A10983

Agency No. 00-63-0829D

DECISION

The agency, Bureau of Census, and the Equal Employment Opportunity

Commission (EEOC) entered into a Memorandum-of-Understanding (MOU)

to govern complaints filed by decennial census workers. Pursuant to

this MOU, the EEOC's Washington, D.C. Field Office decided whether to

accept the complaint, conducted settlement negotiations, and returned the

complaint to the agency for investigation. During the investigation,

the agency determined that complainant was employed by a contractor,

not the agency. As a result, the agency dismissed the complaint for

failure to state a claim on October 18, 2000.

In its dismissal, the agency found that complainant was an employee of

�National Computer Systems� (NCS), not the agency. The agency found that

complainant was paid by NCS, supervised by NCS employees, and trained

by a third party hired by NCS. Further, the responsible officials are

NCS employees. Although complainant may have used agency equipment

when performing her duties, the agency found that complainant was not

an agency employee, and therefore was not eligible to proceed through

the Federal Sector EEO process.

On appeal, complainant does not argue that she was an agency employee.

She notes that she was hired through �Desert Legacy Vocational Services,�

another government contractor.

To state a claim of discrimination, complainant must be an employee or

applicant of the agency. The agency may dismiss complaints that fail to

state a claim. See 29 C.F.R. � 1614.107(a)(1). The Commission applies

the common law of agency test to determine whether complainants are

�employees� entitled to protection under Federal Sector Regulations.

See Zheng v. Department of Health and Human Services, EEOC Appeal

No. 01962389 (June 1, 1998).

Under this test, the Commission finds that complainant was not an

employee or applicant for employment with the agency. Complainant

is paid, supervised, and trained through outside organizations.

She was disciplined by employees of the contractor, NCS. Therefore,

the Commission finds that complainant was a contractor, not an agency

employee entitled to protection under Federal Sector regulations.<1>

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

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

February 6, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1As an employee of a private corporation, complainant should contact

the EEOC directly at 1-800-669-4000 to file a charge of discrimination,

if she wishes to do so.