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his weapons authorization card was revoked and his authorization to carry
a sidearm was rescinded by the Security Office at Pacific Missile Range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.