01a20421_r
02-06-2002
Pauline M. Yamane, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Pauline M. Yamane v. Department of the Army
01A20421
February 6, 2002
.
Pauline M. Yamane,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20421
Agency No. AOEWFO0104B0130
DECISION
Upon review, the Commission finds that the agency's decision dated October
4, 2001, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). The instant complaint
involved alleged improper remarks made by agency employees concerning
complainant's height and a hostile work environment.
The record indicates that at the time of the alleged incidents,
complainant was not employed by an agency, but was a participant
in the Work Hawaii Program with the City and County of Honolulu.
The record indicates that the Work Hawaii Program was responsible for
the payment of complainant's salary, payroll taxes, and appropriate
fringe benefits. Specifically, the record indicates that complainant
signed and acknowledged the terms of her temporary employment with the
City and County of Honolulu. The record also indicates that the agency
did not provide complainant with annual, sick, holiday or other leave
with pay provisions. The agency did not reimburse complainant for any
expenses or provide her with medical insurance, retirement benefits or
temporary or long term disability benefits. The agency stated that
its obligation was to provide necessary supervision, training, work
equipment and/or materials to enable complainant to perform her duties
and to provide her sufficient work to occupy a full day. The agency
also stated that it was responsible for maintaining and submitting to
the Work Hawaii Program accurate sign-in/out sheets for verification of
complainant's working hours. Based on the foregoing, the Commission finds
that complainant was not an agency employee. See 29 C.F.R. � 1614.103;
Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Co. v. Darden,
503 U.S. 218, 323-24 (1992)). Thus, the Commission finds that the
complaint fails to state a claim within the purview of the regulations.
Accordingly, the agency's decision is hereby AFFIRMED.
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
February 6, 2002
__________________
Date