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