0120073193
09-25-2007
Christina Reaves-Powell, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Christina Reaves-Powell,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073193
Agency No. 200L05982007101415
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 28, 2007, 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 complaint, complainant, a medical student working on a research
study at the agency, alleged that she was subjected to discrimination
on the basis of sex (female) when, from January 2006 to January 2007,
she was subjected to sexual harassment by her agency supervisor.
The agency dismissed the complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency noted that
complainant was a "worker without compensation." As such, the agency
noted that it did not provide complainant with compensation, retirement,
or any other benefits such as leave. Therefore, the agency determined
that complainant was not an employee for purposes of Title VII.
Complainant appealed. On appeal, complainant noted that, based on
the factors provided by the agency, she was an employee of the agency.
As such, complainant requests that the Commission reverse the agency's
dismissal. In response to complainant's appeal, the agency asserted,
in essence, that complainant was a contractor not under the control of
the agency.
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).
As a point of clarification, we note that the agency argued that
complainant was not an employee. In analyzing complainant's employment
status, the agency provided the legal analysis of whether a contractor
is considered a de facto employee for purposes of EEO law. We note that
the agency's analysis is not applicable in this case. Complainant was
not a contractor for the agency, but a volunteer.
Generally, only individuals who are an "employee or applicant for
employment" are covered by our regulations. See 29 C.F.R. � 1614.103.
The record reflects that complainant was a worker without compensation.
Complainant had her hours set by the agency, and was provided an
agency supervisor, and assigned to an agency-sponsored research project.
Volunteers usually are not protected "employees." EEOC Compliance Manual,
Section Two - Threshold Issues, No. 915.003 at 2-28 (May 18, 2000).
However, an individual may be covered by Title VII if the volunteer
work is required for regular employment or regularly leads to regular
employment with the same entity. In such situations, discrimination by
the respondent operates to deny the charging party a future employment
opportunity. Id. In addition, an individual may be considered an
employee of a particular entity if, as a result of volunteer service,
s/he receives benefits such as access to professional certification,
even if the benefit is provided by a third party. Id.
In the case at hand, we find that the record has not been sufficiently
developed for the Commission to issue a decision regarding complainant's
status with the agency. In particular, there is no information in the
record to determine what benefit complainant might gain from her volunteer
work with the agency, even by a third party, regarding professional
certification. Furthermore, there is no information provided concerning
whether the volunteer work she was providing commonly leads to regular
employment with the agency. Thus, the agency has failed to substantiate
the bases for its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991).
Accordingly, we VACATE the agency's final decision dismissing the
complaint and REMAND the matter in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to reconsider its dismissal decision in light
of the legal analysis concerning the standing of volunteers to bring
claims in the EEO complaints process, and either accept the matter for
investigation or issue a new dismissal decision, with appeal rights to
the Commission, setting forth adequate justification for the dismissal.
The agency shall issue its new accept/dismiss decision to complainant
within thirty (30) calendar days of the date this decision becomes final.
A copy of the agency's new decision must be sent to the Compliance
Officer as referenced below.
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
September 25, 2007
__________________
Date
2
0120073193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073193