0520110069
04-26-2012
_________________, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
_________________,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Request No. 0520110069
Appeal No. 0120102070
Agency No. DOSF03710
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in ______________ v. Department of State, EEOC Appeal No. 0120102070 (August 19, 2010). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b). After reconsideration of the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to GRANT the request.
ISSUE PRESENTED
The issue presented is whether the previous decision clearly erred in determining that Complainant was not an Agency employee for the purposes of the 29 C.F.R. Part 1614 EEO complaint process.
BACKGROUND
Beginning in August 2008, Complainant worked as an Arabic Language Instructor/Curriculum Developer at the Agency's Foreign Service Institute (FSI) in Arlington, Virginia. Complainant's work occurred under a Blanket Purchase Agreement (BPA).
In January 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Iraqi), sex (female), and reprisal for prior protected EEO activity under Title VII when her supervisor (S1) subjected her to a hostile work environment.
The appellate decision affirmed the Agency's final decision, which found that Complainant was not an Agency employee and dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The appellate decision cited the twelve factor test enunciated in Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (May 29, 1998) and, referencing the contractual language in the BPA, reached the following conclusion:
Based on the record before us, we find that the Complainant is not a federal government employee. Payment is made for work after submission of an invoice. No leave is afforded. There are no retirement benefits, and the Agency does not pay social security taxes. Moreover, the contract between Complainant and the Agency expressly states that Complainant is an independent contractor which indicates that the parties did not intend an employment relationship. See Crasnitchi v. Dep't of State, EEOC Appeal No. 01A60474 (Apr. 19, 2006) (finding that complainant was not a government employee because payment was made after submitting an invoice, there were no retirement benefits, the agency did not pay social security taxes, and contractual language expressly stated that complainant was a contractor).
In Crasnitchi, the complainant, under a BPA, taught Russian for the FSI. The appellate decision relied on Crasnitchi in finding that Complainant was not an Agency employee.
ARGUMENTS ON RECONSIDERATION
On request for reconsideration, Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact or law. Specifically, Complainant argued that the appellate decision failed to analyze all the factors under Ma.
In a September 29, 2010 "Amended Request for Reconsideration," Complainant referenced a decision issued by the Commission in Bashrawi v. Department of State, EEOC Appeal No. 0120101859 (August 18, 2010). Complainant contended that she learned about Bashrawi after filing her original request for reconsideration. Complainant noted that in Bashrawi, which involved an almost identical fact pattern as the instant complaint, the Commission found that the complainant was a de facto employee of the Agency. Complainant argued that her situation is similar to the Bashrawi complainant because: (i) they both filed a complaint alleging that the same Agency employee subjected them to harassment; (ii) they both worked under a BPA to provide language services to the Agency's FSI; (iii) they both worked directly under the supervision of the same Agency employee, who is alleged to be responsible for all the actions forming their claims of discrimination; and (iv) the Agency exercised sufficient control over both their positions. Complainant asserted that, under the analysis set forth by the Commission in Bashrawi, she should also be considered a de facto employee.
The Agency did not respond to Complainant's request for reconsideration.
ANALYSIS AND FINDINGS
At the outset, the Commission finds that Complainant's "Amended Request for Reconsideration" is untimely. The regulation set forth at 29 C.F.R. � 1614.405(b) provides, in relevant part, that a party may request reconsideration within 30 days of receipt of a decision by the Commission. In her original request for reconsideration, Complainant stated that she received the appellate decision on August 20, 2010. Accordingly, the Commission declines to consider Complainant's September 29, 2010 "Amended Request for Reconsideration," as it was untimely pursuant to 29 C.F.R. � 1614.405(b).
The Commission, however, does take administrative notice of the decision in Bashrawi v. Department of State, EEOC Appeal No. 0120101859 (August 18, 2010). In Bashrawi, the Commission found that the Agency exerted sufficient control over the complainant, who worked under a BPA as a Language Instructor at the Agency's FSI, to establish a de facto employer-employee relationship between the Agency and the complainant. The Commission cited the following as evidence of sufficient control: (1) the complainant worked directly under the supervision of an Agency employee, who was alleged to be responsible for all the actions forming her claim of discrimination; (2) the complainant's supervisor provided the complainant with all her work assignments and controlled the complainant's schedule; (3) the time and place of work was set by the Agency; and (4) the EEO Counselor's report indicated that the Agency had investigated a prior EEO complaint filed by the complainant. The Commission finds that the situation presented in the instant case is indistinguishable from Bashrawi because, as explained below, the Agency exercised sufficient control over Complainant to establish a de facto employer-employee relationship between the Agency and Complainant.
The Commission finds that Complainant's original request for reconsideration meets the criteria of 29 C.F.R. � 1614.405(b) because the appellate decision contained a clearly erroneous interpretation of material law. Specifically, we find that the appellate decision, like Crasnitchi, addressed only some of the factors under Ma and failed to assess and weigh all the incidents of the relationship between the Agency and Complainant.1
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Serv., supra (citing Nationwide Mut. Ins. 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 work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. See Ma v. Dep't of Health and Human Serv., 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.
Upon review of the record, we find that factors (1), (2), (4)-(7), and (9) indicate that Complainant is an Agency employee under Title VII. In contrast, we find that factors (3), (8), and (10)-(12) indicate that Complainant is not an Agency employee under Title VII. We will address each factor in detail below.
Factors (1), (2), (4)-(7), and (9) Indicate Complainant is an Employee
Regarding factors (1) and (2), we find that the Agency had the right to control the means and manner of Complainant's work performance and that Complainant's work usually was done under the direction of a supervisor.
For example, the Agency had the authority to monitor and change different aspects of Complainant's day-to-day work. In a declaration submitted to the EEO Counselor, Complainant alleged that S1 attended her classes to observe her performance on an "almost daily" basis, changed her schedule, moved her office, obtained computer equipment for her, and assigned her as his testing partner.
In addition, the Agency had the authority to formally evaluate Complainant's work. A 2008-2009 evaluation reflects that S1 and two other Agency employees rated Complainant on her performance and recommended whether or not the Agency should use her services again.
Further, the Agency had the authority to give Complainant additional projects and training opportunities. The EEO Counselor's report noted that the Chair of the FSI Language Department (Chair) stated that "teachers are evaluated based on what they are assigned to do ... The immersions and testings are given out as regular assignments ... It is seen not as a privilege, just work assigned by management." The report also noted that the Chair agreed to put Complainant on an immersion and to sign her up for training.
Finally, the Agency had the authority to control Complainant's work hours and work tasks. As to work hours, BPA Section C.6 (Schedule) states that classes are held Monday through Friday between 7:00 a.m. and 7:00 p.m., and that all contractors "need to coordinate their schedules closely" with the Government Technical Monitor (GTM).2 As to work tasks, BPA Section C.4 (Requirements) specifies that contractors will be required to do any number of the following:
* Work on training and/or testing matters "under the direct guidance" of the GTM
* Adapt teaching techniques and approaches to the students' individual learning styles and needs "[i]n consultation with" the GTM
* Provide feedback and analysis of the students' progress and problems to the GTM
* Make maximum use of the technological facilities and incorporate the use of instructional technology into the instructional program "in consultation with" the GTM
* Participate in the Learning Consultation Service "in whatever fashion deemed appropriate by" the GTM
* Participate in conferences related to foreign language teaching, workshops, and other types of sessions "as determined by the school management"
* Collaborate on, perform assigned tasks or execute single-handedly, in the development of language training materials, Language-School-relevant reference materials, and Language-School-relevant research and development projects "[i]n close consultation with" the GTM
* Record audio or video materials "as assigned"
* Participate in in-service staff development and orientation activities sponsored by the FSI "in whatever fashion deemed appropriate by" the GTM
* Follow techniques, methodologies, and approaches used by the office/section "as required by" the GTM
* "May be asked" to become a certified Tester by the FSI Language Testing Office
* "May be requested" to conduct end of training tests at one of the FSI's field schools overseas
Regarding factor (4), we find that the Agency furnished the equipment used and the place of work. As to the equipment used, BPA Section C.9 (Government Property) states that the Agency "will provide all necessary materials and supplies to perform the duties" and will "provide multimedia equipment and technology-based materials." In addition, the section states that "[a]ll materials developed and/or used by the contractor remain the property of" the Agency. As to the place of work, BPA Section C.12 (Place of Delivery) states that services "will be performed primarily, but not exclusively" at the Agency's facility.
Regarding factors (5) and (6), we find that Complainant had worked at the Agency for over 17 months and was paid by the Agency by time, i.e., by the hour. As to the length of the working relationship, the record reflects that Complainant began working at the Agency in August 2008 and filed her EEO complaint in January 2010. As to the method of payment, BPA Section C.13 (Payment/Invoicing) states that contractors "will submit invoices bi-weekly for hours worked." The continuing relationship between Complainant and the Agency, and the fact that Complainant was paid by the hour (rather than for the agreed cost of performing a particular job), both indicate that Complainant is an Agency employee. Commission guidance holds that factors indicating that a worker is an employee include: (a) the existence of a continuing relationship between the worker and the agency; and (b) the worker is paid by the hour, week, or month rather than for the agreed cost of performing a particular job. See EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002, Question 1 (Dec. 3, 1997) (Guidance).
Regarding factor (7), we find that the Agency had the authority to unilaterally terminate its work relationship with Complainant without notice and explanation. Specifically, BPA Section C.17 (Termination of Task Orders) states that the Agency can terminate a contractor "without discussion and without ... giving a reason." In addition, the section specifies that possible reasons for termination include failing to follow directions/guidance from the GTM, complete designated tasks, work collegially with colleagues, and behave professionally. Commission guidance holds that a factor indicating that a worker is an employee is the agency's ability to discharge the worker. See Guidance, Question 1.
Regarding factor (9), we find that Complainant's work as a Language Instructor/Curriculum Developer at the FSI was an integral part of the Agency's business. In so finding, we note that BPA Section C.1 (Background) states that FSI "is responsible for the diverse and complex mission of language training for employees of the [Agency] and other U.S. Government agencies." Such language training of Agency employees would reasonably be a vital part of the Agency's mission of foreign diplomacy and international relations.3
Factors (3), (8), and (10)-(12) Indicate that Complainant is Not an Employee
Regarding factor (3), we find that Complainant's position requires a high level of skill. Specifically, BPA Section C.3 (Qualifications) requires Complainant to be an educated native speaker of the language and Section B.3 (Supplies or Services, and Prices/Costs) reflects that the Agency paid her $30-35 an hour for her expertise. Commission guidance holds that a factor indicating that a worker is an employee is that the work does not require a high level of skill or expertise. See Guidance, Question 1.
Regarding factors (8), (10), and (11), we find that the Agency does not afford annual leave, provide retirement benefits, or pay social security taxes. Specifically, BPA Section C.16 (Self-Employed Contractors) specifies that the Agency provides no benefits and that Complainant is responsible for managing her own social security payments.
Regarding factor (12), we find that the Agency and Complainant did not believe that they were creating an employer-employee relationship. In so finding, we note that BPA Section C.16 (Self-Employed Contractors) expressly states that Complainant is a contractor and not an Agency employee.
Weighing of the Factors
After examining all the incidents of the working relationship between the parties as specified in Ma, we find that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship between the Agency and Complainant. Considering the totality of the circumstances, the nature of the working relationship was such that the Agency retained a considerable degree of control over Complainant's job performance. As shown above, during their 17-month working relationship, the Agency controlled the means and manner of Complainant's performance, supervised her work, furnished the equipment used and the place of work, and could terminate her without notice and explanation. In addition, the Agency paid Complainant by the hour to provide language training - an integral part of the Agency's foreign diplomacy mission.
We acknowledge the fact that the BPA language identified Complainant as a contractor and the fact that the Agency did not provide her with leave, retirement benefits, or social security taxes. Notwithstanding those facts, the record before us nonetheless demonstrates that the Agency retained sufficient control over Complainant to qualify as an employer. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (finding, despite contractual language identifying the complainant as a contractor and the agency's failure to provide wages, benefits, and leave, that the agency exercised sufficient control over the position because it retained approval over the selection process and supervisory authority over the position); Lonergan v. Dep't of Veterans Affairs, EEOC Request No. 05970406 (July 10, 2000) (finding that the agency exercised sufficient control over the position because the complainant worked designated hours at an agency facility for 14 months, the complainant's work fell within the parameters of the agency's regular business, and the agency assigned the complainant work and controlled the manner of the work).
Based on the legal standards and criteria set forth herein, we find, under the facts of this case, that because the Agency exercised sufficient control over Complainant's position, the Agency serves as her de facto employer for the purposes of the 29 C.F.R. Part 1614 EEO complaint process.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to GRANT Complainant's request. The Commission REVERSES its previous decision in _____________ v. Department of State, EEOC Appeal No. 0120102070 (August 19, 2010) and the Agency's final decision, and REMANDS Complainant's complaint to the Agency for further processing in accordance with the Order below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
___4/26/12_______________
Date
1 The appellate decision addressed Ma factors (6), (8), and (10)-(12), but neglected to analyze factors (1)-(5), (7), and (9).
2 BPA Section E.2 (The Role of Government Personnel and Responsibility for Contractor Administration) states that the GTM's responsibilities include "monitoring and inspecting the Contractor's progress and performance" and "evaluating contractor performance with the terms and conditions of this contract."
3 The Agency's mission statement is to "[s]hape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere." See U.S. Department of State, http://www.state.gov/s/d/rm/index.htm#mission (last visited Feb. 10, 2012). The FSI is "the primary training institution for officers and support personnel of the U.S. foreign affairs community, preparing American diplomats and other professionals to advance U.S. foreign affairs interests overseas and in Washington." See U.S. Department of State - Foreign Service Institute, http://www.state.gov/m/fsi/ (last visited Feb. 10, 2012).
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0520110069
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0520110069