01a45277
11-24-2004
Amy L. Beechum, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
Amy L. Beechum v. Tennessee Valley Authority
01A45277
November 24, 2004
.
Amy L. Beechum,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A45277
Agency No. 0507-2004036
DISMISSAL
Complainant initiated an appeal from a final agency decision (FAD)
concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant filed a formal complaint in which
she alleged discrimination on the basis of sex (female) when:
she was prevented by the agency from being hired by Day & Zimmerman, NPS,
Inc. (DZNPS), an agency contractor, for an assignment at Cumberland
Fossil Plant or Johnsonville Fossil Plant on or about January 8,
2004; and,
she was not assigned to Johnsonville Fossil Plant by DZNPS in March 2004.
For the following reasons, the Commission AFFIRMS the agency's FAD
dismissing complainant's complaint.
The record reveals that complainant, a contract employee at the agency's
Cumberland Fossil Plant in Tennessee, filed a formal EEO complaint with
the agency on May 7, 2004, alleging that the agency had discriminated
against her as referenced above. At the conclusion of the investigation,
complainant was informed that her complaint was being dismissed for
failure to state a claim. Specifically, the agency found that complainant
was not an agency employee nor an applicant for agency employment.
In addition, the agency dismissed claim (2) as untimely EEO counselor
contact. It is from this decision that complainant appeals.
In its FAD, the agency concluded that complainant failed to state a claim
and dismissed the claims raised in the formal EEO complaint. On appeal,
complainant contends that the agency prevented her from returning to
work after the 90 day restriction was lifted. The agency requests that
we affirm its FAD.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in pertinent part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). Claims against agencies made by independent contractors,
however, fail to state a claim. See Mallory v. Environmental Protection
Agency, EEOC Appeal No. 05950142 (April 11, 1996). Thus, before the
Commission can consider whether the agency has discriminated against
complainant in violation of Title VII and/or the ADEA, we must first
determine whether complainant is an agency employee.
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee under Title VII. 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)). This same test applies to claims brought
under the ADEA. 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. Id.
We find that the complaint's claims were properly dismissed pursuant
to EEOC regulations for failure to state a claim because the agency
correctly found that complainant was a contract employee and not directly
employed by the agency. The record evidence establishes that complainant,
at all times, was under the supervision of DZPNS. The uncontroverted
record shows that DZPNS was responsible for complainants: salary, leave,
retirement, insurance, and any other benefits to which she was entitled.
DZNPS was responsible for payment of all federal, state and local
taxes arising out of complainant's pay. The record also shows that
DZPNS was responsible for rating, hiring, and terminating complainant.
The Commission notes that on her formal EEO complaint, complainant marked
that she was not an agency employee.
Based on the foregoing, we find that complainant was not an agency
employee. Therefore, after a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
FAD's dismissal.
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
November 24, 2004
__________________
Date