01A50873
12-20-2005
Clarence Carlton, Jr., Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Clarence Carlton, Jr.,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A50873
Agency No. M04-0042
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision (FAD) dated September 30, 2004, dismissing his claim 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. The complainant contends that he was discriminated
against based on his race (African-American) and age (date of birth
unstated) when he was terminated from his guard or aviation security
officer position in August 2004.[1]
The FAD found that the complainant was an independent contractor. An
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he has been discriminated against by the
agency because of race, color, religion, sex, national origin, age or
disabling condition. See 29 C.F.R. �� 1614.103, .106(a). Accordingly, a
complaint may be dismissed for failure to state a claim when the
complainant is not an employee or applicant for employment with the federal
government. This is what the FAD did.
The Commission has applied the common law of agency test to determine
whether complainants are agency employee under laws enforced by the EEOC.
See Ma v. Department of Health and Human Services, EEOC Appeal No. 01962389
& 01962390 (May 29, 1998)(citing Nationwide Mutual Insurance Co. 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
usually is 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 id.
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.
The complainant indicated that he was hired to work for the agency's US.
Marshals Service (USMS) as a transportation enforcement branch officer in
1992, and signed a contract with the USMS in September 2003 to become a
guard. The contract indicates that his task was to guard detainees during
transport.
A document accompanying the contract indicates that the performance period
was one year, with a monetary limit of $50,000. Work was compensated at a
rate of $16.50 an hour, with an overtime rate for work in excess of 40
hours in one week of $24.75. Under the contract, the complainant agreed
to provide service on an on-call basis for any location at any time day or
night, and to be reimbursed for actual hours worked, including the time
required to show until release. No amount of hours were guaranteed. To
receive payment, the complainant had to submit a voucher on a bi-weekly
basis, or upon completion of an assignment. This included a time and
attendance form to be approved by an agency supervisor. Extensive travel,
which may include overnight stays, was required, and airfare, meals and
lodging expenses not covered under an established "GTA" were paid by the
complainant and reimbursed subject to joint federal travel regulations.
The complainant was not entitled to pension, health, or other federal
employee health benefits, and the weight of the evidence is that the agency
did not pay social security taxes. Federal and state income taxes were
withheld. The contract explicitly stated that the complainant was an
independent contractor, not an employee.
Based on the record before us, we find that the complainant is not an
employee. Payment is made for work after submission of a voucher. No
leave is afforded. There are no retirement benefits, and the agency does
not pay social security taxes. Further, all this indicates the parties did
not intend an employment relationship.
In Garrity v. Department of Justice, EEOC Appeal No. 01A31430 (March 12,
2004), request to reconsider denied, EEOC Request No. 05A40681 (May 5,
2004), and Fowler v. Department of Justice, EEOC Appeal No. 01A23529
(September 19, 2002), request to reconsider denied, EEOC Request No.
05A30077 (January 15, 2003) the Commission determined that contract USMS
aviation security officers were independent contractors. Excerpts of the
contracts recited in those decisions contained the same language as the
contract the complainant signed.
The FAD listed almost all the factors recited in Ma in making a
determination on whether an individual is an employee or independent
contractor. On appeal, the complainant makes no argument regarding the
factors, such as the nature of how his work was checked or supervised, like
being subject to performance appraisals. Given the record, and our prior
rulings, we find that the complainant is an independent contractor.
Accordingly, the agency's decision to dismiss the 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
December 20, 2005
__________________
Date
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[1] The complainant raised the age basis on appeal.