01A33431_r
08-22-2003
Cecile M. Kasberg, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Cecile M. Kasberg v. Department of the Army
01A33431
August 22, 2003
.
Cecile M. Kasberg,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33431
Agency No. ARSTU03040002
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 4, 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 March 27, 2003, complainant alleged
that she was subjected to discrimination on the basis of sex when on or
about January 30, 2003, [named Director of Religious Education] at the
6th ASG Chaplain's Office, allegedly sexually harassed her.
The record reflects during the relevant time complainant was a Religious
Education Coordinator through an entity identified as Catholic Religious
Education Coordination (REC), and worked at the agency's 6th Area Support
Group (ASG) Chaplain's Office in Stuttgart, Germany.
The agency dismissed the complaint for failure to state a claim, finding
that complainant did not meet the common law of agency test necessary
to satisfy requirements for employee standing.
On appeal, complainant argues that the agency improperly dismissed
her complaint because she is an employee of the agency's 6th ASG.
Complainant further states �even if I am not covered as a contractor,
I believe I have a right to file a formal complaint because I am a spouse
of a military member working at Patch Barracks.�
In response, the agency contends that complainant was not an agency
employee; and that she was an independent contractor providing religious
education classes using volunteers from the Catholic Chapel services. The
agency further contends that complainant determined how she would meet
the broad defined work requirements in the statement of work; received no
performance evaluation; received no leave; was responsible for her taxes;
and if she was unable to perform, she was allowed to provide a qualified
substitute for a period of time and was responsible for any payment to
the substitute. According to the agency, in any event complainant fails
to comply with the terms in the statement of work regarding safeguarding
money or non-disclosure of sensitive information, complainant's contract
with the agency would be terminated immediately.
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.
The record in this case contains a document identified as Statement of
Work (SOW) Chaplain Religious Support Program, Non-Personal Services
Contractor, Not to Exceed One (1) Year, Religious Education Coordinator
(REC) Catholic. Therein, Section 17 �Compensation� provides that �upon
satisfactory completion of services by the Contractor and presentation
of invoice IAW terms of this contract, Contractor shall be paid
monthly. Since this contract does not create an employer-employee
relationship, there are no provisions for lodging or employee benefits
of medical care, retirement, or workers' compensation. The contractor
is also responsible for his/her own tax liabilities.� The contract
also provides another provision indicating that in order to avoid the
appearance that the contractor is a government employee while performing
services under the contract, the contractor is to wear a name plate
with his or her full name, and status as �Protestant Religious Education
Contractor.�
The Commission determines that the record in this case contains sufficient
evidence supporting a determination that the instant complaint fails to
state a claim under 29 C.F.R. Part 1614 because complainant is not an
agency employee or applicant for employment with a covered governmental
entity. See 29 C.F.R. 1614.103(c). In particular, we find the evidence
showing that complainant was an independent contractor providing religious
education classes for the agency's 6th ASG Chaplain's Office. 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
August 22, 2003
__________________
Date