01A63043
08-30-2006
Michelle Lintner,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A63043
Agency No. DOSF03906
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 20, 2006, 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. 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.
Complainant alleges that she was subjected to discrimination on the bases
of sex (female) and reprisal for prior protected EEO activity under an EEO
statute that was unspecified in the record when:
1. she was exposed to frank sexual conversations between her
coworkers.
At the time of the events at issue, complainant worked in the Radio
Programs Branch, Bureau of Information Resource Management. She had been
placed there in a support position by a private staffing firm, CACI, Inc.-
FEDERAL ("CACI"), pursuant to a contract with the agency (Contract No.
GS07T00BGD0021, Task 05-054, CLIN 303G). A copy of the contract is
contained in the record. Complainant was paid on an hourly wage basis, and
provided leave and other benefits, by CACI, and not the agency.
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).
The Commission must first determine whether the 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, an amended, 42 U.S.C. 2000e-
16(a) et. seq. The Commission has applied the common law of agency test to
determine whether an individual is an agency employee under Title VII. 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.[1]
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[2].
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
August 30, 2006
__________________
Date
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[1] 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.
[2] Information on filing a complaint of discrimination as a private-sector
employee is available at www.eeoc.gov or by calling 1-800-669-4000.