0120110765
10-05-2011
Deborah K. Baker, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Deborah K. Baker,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110765
Agency No. ARUSAR10AUG03508
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 19, 2010, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Licensed Practical Nurse (LPN) at the Agency’s Immunizations
Clinic facility in Fort McCoy, Wisconsin.
On September 7, 2010, Complainant filed a formal EEO complaint alleging
that the Agency subjected her to discrimination on the bases of sex
(female) and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when, on June 7, 2010, she was terminated
from her position by Nursing Enterprises, Inc. (NEI).
In its final decision, the Agency determined that as a contract
employee of the Agency, Complainant did not have standing as an
"employee" covered by the 29 C.F.R. Part 1614 EEO complaint process.
In a subsequent statement on appeal, the Agency details why it determined
that Complainant’s claim is not covered. The Agency maintains that
Complainant worked for NEI, and it was that organization who determined
the services required and employment requirements for Complainant. It
represented that NEI, not the Agency, also determined her rate of pay and
withheld social security taxes and other taxes from Complainant's pay.
The Agency also did not provide medical insurance for temporary or
long-term disabilities to Complainant. Further, LEI, not the Agency,
approved leave requests and provided her a performance evaluation.
The Agency notes that Complainant admits, in her pleadings, to being a
civilian contract LPN, and admits to being terminated by a NEI contractor
on June 7, 2010. Finally, Complainant has filed an EEOC private sector
charge of discrimination against NEI. The Agency maintains that it did
not employ Complainant and was not her employer. Complainant does not
counter the Agency’s position in her appeal statement.
ANALYSIS AND FINDINGS
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, as amended, 42 U.S.C. § 2000e-16(a).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency
by Title VII only if she may be deemed an employee of the agency or
applicant for employment with the agency.
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed to
be “employees” under section 717 of Title VII. 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 Zheng v. Dep’t of
Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998);
Ma v. Dep’t of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insur. Co. et. al. v. Darden,
503 U.S. 318, 323-24 (1992)).
Based on the legal standards and criteria set for herein, we find that
the Agency did not exercise sufficient control over the complainant’s
position to qualify as the employer or joint employer of complainant.
See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006). Accordingly, we find that the agency’s dismissal
was appropriate and we AFFIRM the Agency’s final decision.
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
October 5, 2011
__________________
Date
2
0120110765
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110765