Carolyn J. Seals, Complainant,v.Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionOct 7, 2003
01A34220_r (E.E.O.C. Oct. 7, 2003)

01A34220_r

10-07-2003

Carolyn J. Seals, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.


Carolyn J. Seals v. Tennessee Valley Authority

01A34220

October 7, 2003

.

Carolyn J. Seals,

Complainant,

v.

Glenn L. McCullough, Jr.,

Chairman,

Tennessee Valley Authority,

Agency.

Appeal No. 01A34220

Agency No. 0713-2002044

DECISION

Complainant filed a timely appeal with this Commission from the

final agency decision dated June 10, 2003, dismissing 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.

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

In her formal complaint, complainant alleged that she was subjected to

discrimination on the bases of sex (female) and age (57) when:

(1) she was laid off from a truck driver position on January 30, 2002,

by a TVA contractor, NPS, on the advice of a TVA employee;

(2) she was not rehired as a truck driver on January 31, 2002, by NPS,

on the advice of a TVA employee; and

(3) policies on wearing hats, safety glasses, and earplugs were suspended

after she was laid off on January 30, 2002.

The record reflects during the relevant time, complainant was a Truck

Driver through an entity identified as Day & Zimmermann NPS, Inc. (DZNPS),

and worked at the agency's Fossil Power Group, Heavy Equipment Division.

The agency dismissed the complainant's complaint pursuant to the

regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state

a claim finding that complainant was not a federal employee.

On appeal, complainant argues that an agency employee laid her off

from her position of Truck Driver and that DZNPS followed up with the

paperwork. Complainant further states that she �was hired at TVA's

request and augmented under the direction of a named agency employee,

not under the direction of DZNPS.�

In response, the agency contends that complainant was not an agency

employee, and that she was referred to DZNPS by a union as having

the appropriate driving qualifications. The agency further contends

that complainant was hired by DZNPS for temporary defined work

applications. Furthermore, the agency contends that DZNPS provided

complainant's supervisor; and that DZNPS paid complainant's salary and

provided her with vacation and retirement benefits. According to the

agency, under the contract, DZNPS �employed a variable workforce from

qualified trades and labor for outage and construction, all of which

have a planned and scheduled duration,� and all of the DZNPS employee

assignments were �temporary in nature.� The agency stated that the

complainant's employer, DZNPS, and not the agency, that laid her off

from her truck driver position as it was only a temporary position.

Before the Commission or the agency can consider whether the agency has

discriminated against complainant in violation of Title VII, it first

must determine whether complainant is an agency employee or applicant

for employment within the meaning of Section 717(a) of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e-16(a)

et seq.

The Commission has applied the common law of agency test to determine

whether complainant 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)). 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. See Ma v. Department of Health and Human Services, 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., (citations omitted).

The Commission in Ma also noted that prior applications of the test

established in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979),

using many of the same elements considered under the common law test,

was not appreciably different from the common law of agency test. See Id.

Under this test, the Commission finds that complainant was not an

employee for employment with the agency. The agency furnished necessary

equipment for work-related activities; however the record indicates

that DZNPS was the primary supervisor of complainant. The record also

contains evidence reflecting that complainant was paid, supervised and

disciplined by DZNPS. Moreover, the record reflects that DZNPS gave

complainant assignments. The record further reflects that leave and

benefits were provided by DZNPS; and that complainant was not considered

an employee of the agency for tax purposes. Under such circumstances,

the Commission determines that complainant was not an agency employee

under the purview of our regulations.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

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

October 7, 2003

__________________

Date