0520120566
01-23-2013
Charmaine C. Franck, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Charmaine C. Franck,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520120566
Appeal Nos. 0120121599, 0120121593
Agency Nos. ARBELVOIR11NOV04755, ARARL11NOV05092
DECISION TO RECONSIDER
Complainant timely requested reconsideration of the decision in Charmaine C. Franck v. Department of the Army, EEOC Appeal Nos. 0120121599 and 0120121593 (July 2, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying case, Complainant filed two formal complaints alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), disability, age, and reprisal for prior protected EEO activity when it withheld funding for her projects and terminated her position in October 2011.
The appellate decision found that Complainant was not an Agency employee for the purposes of the 29 C.F.R. Part 1614 EEO complaint process and affirmed the Agency's dismissal of her complaints pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.1 Specifically, the appellate decision cited the twelve factor test enunciated in Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (May 29, 1998) and found that factors (1), (2), (6), and (8)-(12) indicated that Complainant was not an Agency employee.2 In so finding, the appellate decision relied on declarations, dated May 21, 2012, from Agency management officials describing the relationship between the Agency and Complainant. The appellate decision concluded that, based on the evidence and a weighing of the Ma factors, the Agency did not exercise sufficient control over Complainant's position to qualify as her employer or joint employer.
In her request for reconsideration, Complainant argued that the appellate decision clearly erred when it relied on the Agency's May 21, 2012 declarations to find that she was not an Agency employee. Specifically, Complainant asserted that the declarations, created by the Agency after she filed her appeal and submitted by the Agency as part of its brief in opposition to her appeal, constituted new evidence that the appellate decision should not have considered. Moreover, Complainant asserted that she never had an opportunity to address or rebut the declarations. Finally, Complainant requested that we reconsider the appellate decision without relying on the improperly submitted declarations and conclude, based on Ma factors (3)-(5), that she was a joint employee of the Agency. In the alternative, Complainant requested that, if we were to conclude that the Agency's submission of the declarations was procedurally appropriate, we provide her with an opportunity to submit arguments and new evidence to rebut the declarations.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. Although Complainant's request challenges the appellate decision's consideration of the Agency's May 21, 2012 declarations, it does not demonstrate that the appellate decision clearly erred in ultimately concluding that she was not an Agency employee. We note that the burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VII.B.2 (Nov. 9, 1999).
However, in the interest of fairness, the Commission has decided to reconsider the appellate decision on its own motion. We note that, as stated in her request for reconsideration, Complainant did not have an opportunity to address or rebut the statements contained in the Agency's May 21, 2012 declarations prior to the issuance of the appellate decision. Accordingly, the Commission VACATES its previous decision in Charmaine C. Franck v. Department of the Army, EEOC Appeal Nos. 0120121599 and 0120121593 (July 2, 2012) and the Agency's final decision, and REMANDS Complainant's complaints to the Agency for further processing in accordance with the Order below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall provide Complainant with an opportunity to supplement the record on the issue of whether she was an Agency employee for the purposes of the 29 C.F.R. Part 1614 EEO complaint process.
2. After Complainant has had an opportunity to supplement the record, the Agency shall issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date of this decision, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___1/23/13_______________
Date
1 The appellate decision found that Complainant was an employee of CACI Technologies Inc.
2 The appellate decision found that factors (3)-(5) indicated that the Agency may be Complainant's joint employer.
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0520120566
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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