Albert L. Antonio, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120051881 (E.E.O.C. Feb. 16, 2007)

0120051881

02-16-2007

Albert L. Antonio, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Albert L. Antonio v. Department of the Navy

0120051881

2-16-07

.

Albert L. Antonio,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No.0120051881<1>

Agency No. DON 03-0534A-001

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 16, 2004, dismissing his 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. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (Filipino/Japanese),

age (D.O.B. 9/21/47), and in reprisal for prior EEO activity when:

his weapons authorization card was revoked and his authorization to carry

a sidearm was rescinded by the Security Office at Pacific Missile Range

Facility (PMFR).

The agency dismissed the complaint for failure to state a claim finding

that complainant was not an employee of the agency. As support for its

decision, the agency stated that complainant was employed as a part-time

Security Guard for ITT Industries, Systems Division. This company,

the agency concluded, is a defense contractor under a specified contract

number N00604-97-R-0001. The agency also relied on a note from the ITT

Human Resources manager verifying complainant's employment with the

company and attaching excerpts from the Statement of Work. The Statement

of Work excerpts concerned the right of the government to prohibit

contractor personnel from bearing arms at any time. The agency also

concluded that it did not control the means and manner of complainant's

work.

We rely on our most recent decision in Baker v. Department of the Army,

EEOC Appeal No. 01A45313 (March 16, 2006), for authority as well as 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 (Dec. 3, 1997)(Guidance) in deciding

whether complainant is an employee of the agency.<2> In Baker, the

Commission reaffirmed its recognition of the common law of agency and a

non-exhaustive list of factors that should be considered in determining

the employment status of a worker who sought employment with the agency.

These same factors apply in determining whether complainant should be

deemed an employee of the agency for the purposes of filing an actionable

claim under Title VII. Those factors include but are not limited to the

following: (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 Baker, the Commission noted that the common-law test

contains �no shorthand formula or magic phrase that can be applied to

find the answer.� No one factor of the relationship is necessarily

decisive. Id; see also Guidance at Section 2(b).

Moreover, under the Commission's Guidance we also recognize that a �joint

employment� relationship may exist where both the agency and a contracting

firm jointly supply the work space, equipment, and supplies, and, between

the two, they jointly control the details of the work to be performed, to

make or change assignments, and to terminate the employment relationship.

Guidance at Section 4.

The Commission concludes that the record in this case is largely

insufficient and does not address the manner and means by which

complainant's employment was controlled and by which entity - the agency

or the defense contractor. See Baker, supra. The agency failed to

address any of the twelve factors set forth above and did not adequately

describe whether the agency and/or the contractor controlled the day to

day work of complainant in his position as a part-time security guard.

Rather the record only addressed the fact that the agency had the

ultimate ability to revoke complainant's ability to carry a firearm.

For these reasons and because the record is insufficiently developed, we

vacate and remand the final decision and require the agency to document

the record as described in the Order below.

ORDER (E0900)

The agency is ordered to conduct a supplemental investigation on the issue

whether complainant is an employee of the agency. The agency will address

the twelve factors set forth in Baker, supra, specifically discussing

the agency's relationship with complainant on a day to day basis and

its ability to control his activities including the following:

Obtain for the record a copy of the contract governing the relationship

between ITT Industries and the agency.

Obtain the affidavits or statements of relevant officials concerning

the working relationship

between security guards hired through ITT Industries and the agency

consistent with Baker and our Guidance as referred to in this decision.

In these affidavits, the agency should focus on the following factors:

the party responsible for paying for the ITT Industries -hired security

guards, the party responsible for providing their benefits, the party with

authority to discipline them, the party responsible for their performance

reviews, for setting their salaries, for directing and maintaining their

schedules, for determining how much access they have to agency facilities

as opposed to �regular� employees, how much input agency officials give

in deciding which particular ITT Industries-hired security guards may

work at the agency, and any other information relevant to the common

law of agency test for employees.

Issue a letter of acceptance of the complaint or issue a new decision

dismissing the complaint with appropriate appeal rights within sixty (60)

calendar days of the date this decision becomes final. This decision

must be based upon and supported by the information gathered in provisions

(1) and (2) of the order.

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 (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

__2-16-07________________

Date

1Due to a new data system, your appeal has been re-designated with the

above-referenced appeal number.

2 The case Ma v. Department of Health and Human Resources, EEOC Appeal

No. 01962390; 01962389 (May 29, 1998) originally set forth twelve factors

to be addressed in determining whether an agency has an employment

relationship with an individual.