0120070911
04-20-2007
Patricia A. Korehbandi, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Patricia A. Korehbandi,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120070911
Agency No. 5F0J07002
DECISION
Complainant filed a timely appeal with this Commission from the final
decision dated November 29, 2006, dismissing her formal 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On November 18, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the bases of age and in reprisal for prior EEO activity when:
on October 11, 2006, she was terminated from her position as Health
Education Program Manager at the agency's Health and Wellness Center.
On November 29, 2006, the agency issued a final decision. Therein,
the agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency found that
complainant lacked standing to bring a formal complaint of discrimination
against the agency, finding that she was not an employee of the agency;
and that she was instead a contractor employee of a corporate entity
identified as Spectrum Healthcare Resources (hereinafter referred as
"Spectrum").
The Commission has applied the common law of agency test to determine
whether an individual is 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. See Ma v. Department
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)). 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. 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"), 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 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 Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16,
2006).
The agency has not provided sufficient evidence in the record addressing
whether complainant should be considered an employee or joint employee
of the agency. Specifically, the record does not contain a copy of
the contract between the agency and Spectrum. The agency has not
provided evidence or analysis concerning the factors in the common
law of agency test. In particular, the agency has not addressed the
means and manner of control complainant's supervisor maintained over the
conditions of complainant's day-to-day work at the agency. Given the
present record, the Commission is unable to ascertain whether or not the
agency has jurisdiction. The Commission shall remand the matter so that
the agency can supplement the record with evidence addressed the common
law of agency test as described in Ma and Baker.
Accordingly, the agency's dismissal of the complaint is VACATED and we
REMAND the complaint to the agency for further processing in accordance
with the ORDER below.
ORDER
Within thirty (30) days after the date this decision becomes final,
the agency is ORDERED to take the following action:
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma, EEOC Appeal No. 01962390, and Baker, EEOC Appeal
No. 01A45313, and identified in this decision. Thereafter, the agency
shall determine whether complainant was an employee of the agency and
whether the instant complaint states a claim of discrimination under 29
C.F.R. � 1614.403 or 1614.106(a).
Thereafter, the agency shall either issue a letter to complainant
accepting the complaint for investigation or issue a new decision
dismissing the complaint.
A copy of the agency's letter accepting the complaint for investigation
or a copy of the new decision dismissing the complaint must be sent to
the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
April 20, 2007
__________________
Date
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0120070911
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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