0120131331
07-15-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.
Appeal No. 0120131331
Agency No. 2013OSD002
DECISION
On March 1, 2013, Complainant filed a timely appeal with this Commission from a Final Agency Decision (FAD) dated February 5, 2013, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of the events giving rise to the instant complaint, Complainant was a participant in the Naval Postgraduate School's (NPS) Science, Mathematics and Research for Transformation Defense Education Program (SMART), in the Office of the Secretary of Defense (OSD), Assistant Secretary of Defense for Research and Engineering. The program supports students pursuing an undergraduate or graduate degree in Science, Technology, Engineering, or Mathematics by providing a full scholarship and an opportunity for employment with a Department of Defense facility (Agency) upon completion.
On November 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment and discriminated against her on the basis of disability (mental) when:
1. on or about June 2010, the Deputy Program Manager (DPM) yelled at her and accused her of manipulating her sponsoring facility into requesting a transfer to a new facility;
2. on or about April 2010, the DPM's choice of words during teleconferences made her feel like she was always wrong;
3. on or about November 2009 and April 2010, the DPM denied her reasonable accommodation request of postponing all teleconferences until after she completed her final exams; and
4. on or about June 2009, the DPM placed her on academic probation as her GPA was below the SMART Scholar Program's requirement.
The Agency dismissed the complaint for failure to state a claim, reasoning that Complainant was not an employee covered by EEO regulations.
CONTENTIONS ON APPEAL
On appeal, in addition to addressing the underlying merits of her case which the Commission declines to address in the instant decision, Complainant argues that the common law test of agency supports her contention that she meets the definition of being an employee for the purposes of protection under federal EEO laws and regulations. In addition to her contention that she was an employee, Complainant submits that she was also an applicant for employment while she was stationed at her internship at Eglin Air Force Base in Valparaiso, Florida.
ANALYSIS AND FINDINGS
SMART Program Components & Agency Role
As explained in the 2009 edition of the SMART Scholarship Program Participant Handbook, the SMART Program has three distinct phases: (1) the academic phase, during which the participant pursues their degree;1 (2) the post-graduation service phase, during which the participant completes a post-graduation employment commitment with the Agency; and (3) the ten year monitoring phase after completion of the post-graduation service during which the Program tracks the participant's employment status. There are two types of SMART participants, Recruitment and Retention participants. Recruitment participants are individuals who are not employed in permanent civilian positions at the Agency at the time they apply for and receive the SMART award. Recruitment participants are generally not employed during the academic phase, and become federal employees upon commencement of the post-graduation employment commitment. Retention participants are individuals who are employed in permanent civilian positions at the Agency at the time they apply for a SMART award. They generally remain employed throughout each phase of the Program.
The SMART Program Office is the main point of contact for participants regarding program related issues, and compliance with policies and procedures. Participants also communicate with a liaison from a particular Sponsoring Service. They are responsible for assisting participants with any issues associated with the Agency related matters. They are also responsible for assisting participants in developing positive relationships with their Sponsoring Facility (Agency components within the Sponsoring Service where a participant may take an internship or complete post-graduation employment), securing internship placement, and post-graduation employment. Sponsoring Facilities review applications even during the application process to identify applicants who may be a good match for their Agency. In instances where a recommendation is made that an applicant should receive the award, the recommending Agency commits to providing internship opportunities, a mentor, written feedback, and full-time post-graduation employment.
Is Complainant an Employee of the Agency for EEO Purposes
EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. The Commission has applied the common law test of agency to determine whether an individual is an agency employee as opposed to being an independent contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the individual's work performance. This determination requires consideration of all aspects of the individual's relationship with the employer. Factors indicating that an individual is in an employment relationship with an employer include the following:
1. The employer has the right to control the manner and means by which the work is accomplished.
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in business.
12. The employer provides the worker with benefits such as insurance, leave or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
The EEOC has previously applied the Ma factors to internship programs. In Jones v. Department of the Army, EEOC Appeal No. 0120101877 (Sep. 21, 2010), George Washington University (GW) managed an eight-week summer intern program where interns were placed in Army laboratories and other offices. The complainant served as a summer intern at the Walter Reed Army Institute of Research. GW provided administrative support services such as advertising the program and issuing stipend checks to participating students. The complainant applied for her internship through an Army website. Applications were received by a third party - a private concern - which forwarded them to Army departments. The complainant filed a complaint alleging that she was sexually harassed by her Army supervisor/mentor. The Army dismissed the complaint for failure to state a claim, reasoning the complainant was a student, not an Agency employee. Applying Ma, the EEOC reversed. It reasoned that the Army selected the complainant for hire, funded her stipend, designated her assignments, and monitored her work. Further, the record indicated that the complainant did not report to anyone at GW while working at Walter Reed, the Army set her arrival time, and if she wished to leave work early or not work a scheduled day, she had to get permission from her Army supervisor.
Upon review, we find that the facts of the instant matter are distinguishable from those in Jones. At the outset, the Commission notes that none of the four allegations in the complaint contain matters that could be specifically attributed to Complainant's interaction with the Agency (Sponsoring Facility), or its personnel. Complainant was a recipient of a scholarship managed by a non-government entity. Neither the Agency, nor the SMART Program, were responsible for the academic component of Complainant's participation in this scholarship program. As Complainant was a full-time student during all relevant time periods, the academic component comprised the bulk of this program. While Sponsoring Facilities were given the opportunity to review applications to make recommendations on which applicants may be best suited for the program, they did not decide who were ultimately selected. Complainant's regular communication with program personnel was never to discuss job related performance. While Complainant was a summer intern, the Sponsoring Facility monitored her hours of operation. At all relevant times, Complainant's academic institution established and monitored her requirements to complete her degree, as they pertained to course-work and the internships.
While Complainant was not required to have a certain level of skill, she was selected for the SMART Program based on her academic interest. As a full-time student, Complainant completed most of her course-work at her academic institution. While completing the internship component, Complainant would utilize work space and materials from the Agency.
Complainant was not entitled to receive compensation from the Agency. Her sole compensation was the monthly stipend, book allowances, and health insurance allowances, distributed by the American Society for Engineering Education (ASSE), and for which Complainant was responsible for annual tax payments to the Internal Revenue Service. The work which interns performed for Agencies was not considered an integral part of the business of that Agency. Nor were the interns considered to be performing jobs, or rendering advisory or personnel services.
Much of what Complainant cites on appeal in support of her contention that she should be considered an employee for EEO purposes relates to the academic requirements of which the Agency played no role in imposing. Based on consideration of these factors, we agree with the Agency's decision that it did not exercise sufficient control over Complainant to qualify as her employer for purposes of filing an EEO complaint.
CONCLUSION
Based on a thorough review of the record in its entirety, including considerations of all statements submitted on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD dismissing the complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
___7/15/15_______________
Date
1 At all relevant times in the instant matter, Complainant was in the academic phase of the SMART Program.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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