01A15200_r
11-26-2002
Arthur K. Chung, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Army & Air Force Exchange Service (AAFES), Agency.
Arthur K. Chung v. Department of Defense (Army & Air Force Exchange
Service) 01A15200
November 26, 2002
.
Arthur K. Chung,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
Army & Air Force Exchange Service (AAFES),
Agency.
Appeal No. 01A15200
Agency No. 99.134
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim on the grounds that complainant was not an agency employee
at the time of the alleged discriminatory events. In a complaint dated
July 27, 1999, complainant alleged that he was subjected to discrimination
on the bases of race (Asian) and national origin (Korean-American) when:
On May 15, 1999, complainant was maltreated and abused by his Manager, the
New Car Sales Manager for the Overseas Military Sales Corporation (OMSC).
Subsequent to the filing of his complaint, complainant amended the
complaint as follows:
Complainant was terminated on November 29, 1999.
Previously, in an agency decision dated January 25, 2000, the agency
dismissed the complaint on the grounds that it failed to state a
claim. The agency determined that complainant's employment with the
agency ended in June 1990. According to the agency, complainant was
not employed by the agency at the time of the complaint, but rather he
was an employee of OMSC, who holds a contract with American automakers
to sell automobiles in overseas locations. In Chung v. Department of
Defense (AAFES), EEOC Appeal No. 01A02795 (June 14, 2001), the Commission
determined that the record documentation at that time was inconclusive as
to whether complainant could be considered an "employee" of the agency
at the time of the alleged incidents. In remanding the complaint for
further processing, we directed the agency to supplement the record
with a copy of any employment contract it has had with complainant,
any contract entered into between it and the OMSC that relates to
complainant, and all other information that is pertinent to deciding
whether complainant is considered an "employee".
The agency issued a second decision July 17, 2001, again finding that
complainant was not an agency employee at the time of the alleged
incidents. In reaching its determination, the agency relies in part,
upon the following facts:
The agency (AAFES) does not directly hire OMSC employees. The agency
does perform background security checks on prospective employees.
Complainant had an employment agreement with the Overseas Military
Sales Organization (OMSO);
Complainant was terminated by the Director, OMSO on November 29, 1999;
Complainant was not paid, nor provided any benefits by the agency.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See 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. 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 worker accumulates retirement benefits;
(11) whether the �employer� pays social security taxes; and (12) the
intention of the parties. See id.
In the present case, the Commission finds that complainant was not
an employee of the Army and Air Force Exchange Service. As noted in
the record, complainant received his pay from the OMSO and further,
was never reappointed to the civil service after 1990. In addition,
the record reveals that complainant did not have direct supervision by an
agency official, but rather was supervised by operations managers of OMSC
and ultimately terminated by the Director of OMSO. Further, according
to the agreement between the OMSC and the agency (contract number
98-022-99-274), OMSC agreed to provide a "sufficient number of trained,
qualified sales representatives to ensure the efficient performance
of this contract." (Negotiated Contract, April 28, 1999). The record
reflects that the agency had essentially no control over any aspect of
complainant's work, providing only space and equipment. Therefore, we
conclude that complainant was not a federal employee and the agency's
decision dismissing the present case for failure to state a claim was
proper.<1>
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
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 26, 2002
__________________
Date
1The Commission finds that the March 15,
1999 memorandum referred to in our prior decision does not specifically
indicate that complainant was an �employee� of the Department of Defense
(Army & Air Force Exchange Service).