01A32837_r
08-25-2003
Cecelia A. Fields, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Cecelia A. Fields v. General Services Administration
01A32837
August 25, 2003
.
Cecelia A. Fields,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A32837
Agency No. GSAR0420030001
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 13, 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.
In her formal complaint, filed on or about November 27, 2002, complainant
alleged that she was subjected to harassment on the bases of race
(African-American), religion (Christianity), and color (black).
Specifically, complainant claimed that she had been harassed from May
11, 1991, to the day of her termination from her employment with Lionel
Henderson Corporation on May 16, 2002.
The agency dismissed the complaint for untimely EEO Counselor
contact. Specifically, the agency
stated that complainant was terminated from her employment with Lionel
Henderson Corporation on May 16, 2002, but that she did not initiate
contact with an EEO Counselor until July 24, 2002, well beyond the
forty-five (45) day limitation period. The agency also dismissed the
complaint for failure to state a claim, without expressly identifying
these dismissal grounds. However, the agency in essence dismissed the
complaint for failure to state a claim by finding that complainant was
an employee of Lionel Henderson Corporation, a government contractor.
On appeal, complainant contends that she filed her complaint against the
agency, instead of her prior employer, a government contractor, because
she was �initially hired by GSA as a federal employee in 1991 under the
Stay-In-School Program and stayed with GSA after graduation from college
as a federal contractor under the hopes and promise of the local GSA
branch to finally regain and obtain permanent federal employee status.�
Complainant contends that her delay in contacting an EEO Counselor
contact was attributable to a statement that was purportedly made by an
unidentified agency EEO representative over the telephone, at the time of
complainant's termination in May 2002. Specifically, complainant claims
that during this conversation, the agency EEO representative informed
complainant that she had to pursue the EEO complaint process through the
Commission's office in Greenville, South Carolina, and not through the
agency EEO complaint process. Complainant asserts that she unsuccessfully
pursued this matter through the Commission's Greenville office from May
2002 through July 2002, when she was then advised to contact the agency
EEO office to pursue further this claim. Complainant asserts that she
then initiated EEO Counselor contact with the agency on July 24, 2002.
Failure to state a claim dismissal (independent contractor)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
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.
The Commission finds that the agency has not provided sufficient evidence
in the record addressing whether complainant was a federal employee.
Specifically, the record contains an EEO Counselor's Report wherein the
Counselor notes that according to complainant, she was employed by the
agency as a federal employee and as a contractor employee. Because it
is not clear whether the agency has jurisdiction over the matter, we
shall remand the matter so that the agency can
supplement the record with evidence addressing the common law of agency
test as described in Ma.
Untimely EEO Counselor contact dismissal
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that on appeal, complainant argues that she
was told by an agency EEO representative to contact the Commission's
Greenville office concerning her claims of discrimination; and that she
was subsequently informed by the Commission's Greenville office to pursue
the matter through the agency, which prompted complainant's initial EEO
contact on July 24, 2002. Based on a review of the record, we find that
the record is not sufficiently clear to determine whether complainant was
purportedly told by an agency representative to contact the Commission's
Greenville office concerning her claims of discrimination, instead of the
agency's EEO office. As we are unable to make a determination regarding
the propriety of the agency's dismissal of the complaint for untimely
Counselor contact, we will vacate the agency's decision and direct it
to conduct a supplemental investigation on the matter.
Accordingly, the agency's dismissal of the complaint is VACATED and we
REMAND the complaint to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final, the agency is ORDERED to take the following action:
1. The agency shall supplement the record with evidence which shows
whether complainant was an employee of the agency using the common law of
agency test as defined in Ma, EEOC Appeal No. 01962390 and described in
this decision. Thereafter, the agency shall determine whether complainant
was an employee of the agency and whether the instant complaint states
a claim of discrimination under 29 C.F.R. � 1614.103 or 1614.106(a).
2. The agency shall also conduct a supplemental investigation and
place evidence in the record whether complainant was purportedly told
to contact the Commission's Greenville office, instead of the agency
EEO office, concerning her claims of discrimination. The agency shall
then re-determine whether complainant's contact with the EEO Counselor
was timely.
Thereafter, the agency shall either issue a letter to complainant
accepting the complaint for investigation or issue a new decision
dismissing the complaint. A copy of the agency's letter accepting the
complaint for investigation or a copy of the new decision dismissing
the complaint must be sent to the Compliance Officer as referenced herein.
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
August 25, 2003
__________________
Date