01a54016_r
10-06-2005
Cynthia J. Robinett, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.
Cynthia J. Robinett v. Department of Homeland Security
01A54016
October 6, 2005
.
Cynthia J. Robinett,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Immigration and Customs Enforcement),
Agency.<1>
Appeal No. 01A54016
Agency No. ICE-05-C143
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 15, 2005, dismissing her formal EEO 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In her formal complaint, filed on February 11, 2005, complainant claimed
that she was subjected to discrimination on the bases of race, sex,
age and in reprisal for prior protected activity when on July 21, 2004,
she was removed from her position as a Contract Security Guard.
The record reflects during the relevant time, complainant was a Security
Guard through a corporate entity identified as Superior Protection,
Inc. (hereinafter referred to as �Superior�), and worked at the agency's
Federal Protective Service (FPS) facility in Houston, Texas. The record
further reflects that complainant was removed from her position after
an agency official elected to re-file misdemeanor charges against her
for unlawful carrying of a weapon.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim,
finding that complainant was not a federal employee.
Complainant raises no new contentions on appeal.
In response, the agency contends that complainant was not an
agency employee; and that she was a contract employee of Superior.
The agency determined that Superior, controlled the "means and manner"
of complainant's performance; served as complainant's supervisor;
gave her assignments at work and appraised her job performance; paid
complainant's salary and provided her with benefits; provided her
uniform; and was responsible for disciplining complainant. In support
of its contentions, the agency submitted a copy of the contract between
Superior and the agency; and a declaration from a Contracting Official.
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 complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 0 1962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 218, 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,
were not appreciably different from the common law of agency test. Id.
Under this test, the Commission finds that complainant was not an
employee with the agency. First, the record contains a document
identified as "Amendment of Solicitation/Modification of Contract,"
dated November 18, 2003 (Contract No. GS-07F-0325L). Therein, it
provides that Superior would provide armed guard services for the
agency's Houston/Conroe/Galveston, Texas facilities for the period of
October 1, 2003 to September 30, 2004. The record further reflects that
in accordance with a "Description of Services," Superior "shall provide
all management, supervision, manpower, materials, supplies, and equipment
(except as otherwise noted), and shall plan, schedule, coordinate and
assure effective performance of all services described here."
Second, the record also contains a copy of a declaration from a
Contracting Officer (Officer). Therein, the Officer stated that Superior
had the authority to discipline complainant; was responsible for the
payment of complainant's salary; and was responsible for providing
complainant with insurance, leave and benefits. The Officer further
stated that as indicated in a document identified "Guard Unfavorable
Adjudication," the FPS "will notify Superior Protection, Inc. whenever a
contract guard (such as [Complainant]) is unsuitable for employment under
a federal government contract. Whenever FPS provides this unsuitability
adjudication this does not mean that Superior Protection, Inc. is required
to terminate the contract guard. To the contrary, Superior Protection,
Inc. is free to continue employing the contract guard as long as the
contract guard does not work under a federal contract."
Finally, we note that in her complaint and the Counselor's Report,
complainant identified herself as an employee of Superior, contracted
by the agency to provide security services.
For the reasons set forth herein, the Commission AFFIRMS the agency's
dismissal of the instant complaint.
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
October 6, 2005
__________________
Date
1The complaint here was originally filed
against the Department of Justice, Immigration and Naturalization
Service. The Immigration and Naturalization Service is now a component of
the Department of Homeland Security, Immigration and Customs Enforcement.