0120110412
06-28-2013
Derrick T. Randolph, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (U.S. Marshals Service), Agency.
Derrick T. Randolph,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120110412
Agency No. USM-2010-00460
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's final decision dated September 27, 2010, dismissing his 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. For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant was not an Agency employee for the purposes of the 29 C.F.R. Part 1614 EEO complaint process.
BACKGROUND
Beginning in October 2009, Complainant worked as a District Security Officer (DSO) at the Agency's Superior Court of the District of Columbia in Washington, DC. Complainant's work occurred under a personal services contract. On June 25, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when, on multiple occasions, the Supervisory Deputy U.S. Marshal changed his reporting time and relieved him from duty in order to prevent him from working more than eight hours a day.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that Complainant was an independent contractor and not an Agency employee.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Serv., supra (citing Nationwide Mut. Ins. 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 work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. See Ma v. Dep't of Health and Human Serv., 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.
Upon review of the record, we find that factors 1-7 and 9 indicate that Complainant is an Agency employee under Title VII. In contrast, we find that factors 8 and 10-12 indicate that Complainant is not an Agency employee under Title VII. We will address each factor in detail below.
Factors 1-7 and 9 Indicate that Complainant is an Employee
Regarding factors 1 and 2, we find that the Agency had the right to control the means and manner of Complainant's work performance and that Complainant's work was done under the direction of a supervisor. For example, the Statement of Work (SOW) provides that the Agency "will provide direct supervision and control for contract DSOs." In addition, the SOW requires DSOs to carry out assignments as directed by a supervisor. Further, the SOW requires DSOs to notify the Agency before leaving an assignment (including for meals or rest breaks) and to be released by the Agency before closing or deserting any post or area. Moreover, the SOW requires DSOs to provide services upon the direction of the Agency and notes that a request for services may be made at any time of the day or night, and the DSO must be capable of providing the services. Finally, the SOW requires DSOs to adhere to Agency security procedures and regulations.
Regarding factor 3, we find that Complainant's position does not require a high level of skill or expertise. Specifically, the Contract DSO Directive (DIR) requires DSOs to have a high school diploma, be able to speak, read, and write the English language, possess a valid driver's license, and be physically able to perform duties related to security in handling and transportation of all detainees. Commission guidance holds that one factor indicating that a worker is an employee is that the work does not require a high level of skill or expertise. See EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002, Question 1 (Dec. 3, 1997) (Guidance).
Regarding factor 4, we find that the Agency furnished the equipment used and the place of work. As to the equipment used, the DIR states that all Agency-issued weapons, Agency-issued identification, and related property or equipment will be secured in Agency custody at the end of each tour of duty. As to the place of work, the record reflects that Complainant worked at the Superior Court of the District of Columbia.
Regarding factors 5 and 6, we find that Complainant had worked at the Agency for over eight months when he filed his formal complaint and was paid by the Agency by time, i.e., by the hour. As to the length of the working relationship, the record reflects that Complainant began working for the Agency in October 2009 and filed his EEO complaint in June 2010. As to the method of payment, the SOW requires the DSO to submit to the Agency a written request, listing the number of hours worked, for reimbursement on a bi-weekly basis or upon completion of each assignment. The continuing relationship between Complainant and the Agency, and the fact that Complainant was paid by the hour (rather than for the agreed cost of performing a particular job), both indicate that Complainant is an Agency employee for the purposes of the EEO complaint process. Commission guidance holds that factors indicating that a worker is an employee include: (a) the existence of a continuing relationship between the worker and the agency; and (b) the worker is paid by the hour, week, or month rather than for the agreed cost of performing a particular job. See Guidance, Question 1.
Regarding factor 7, we find that the Agency had the authority to unilaterally terminate its work relationship with Complainant. Specifically, the DIR states that personal services contracts may be terminated by the Agency with a 15-day advance notice of termination. Commission guidance holds that a factor indicating that a worker is an employee is the agency's ability to discharge the worker. See Guidance, Question 1.
Regarding factor 9, we find that Complainant's work as a DSO was an integral part of the Agency's business. In so finding, we note that the SOW states that "[t]he objective of this contract is to provide for the security in handling and transportation of all federal prisoners and aliens, certain non-federal detainees, and military prisoners in various work contexts." Such security would reasonably be a vital part of the work of a federal law enforcement agency.
Factors 8 and 10-12 Indicate that Complainant is Not an Employee
Regarding factors 8, 10, and 11, we find that the Agency does not afford annual leave, provide retirement benefits, or pay social security taxes. Specifically, the SOW states that DSOs are not entitled to annual leave or pension benefits, and that the Agency withholds only federal and states taxes.
Regarding factor 12, we find that the Agency and Complainant did not believe that they were creating an employer-employee relationship. Specifically, the DIR expressly states that a DSO is providing services as an independent contractor and is not an employee of the Agency.
Weighing of the Factors
After examining all the incidents of the working relationship between the parties as specified in Ma, we find that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship between the Agency and Complainant. Considering the totality of the circumstances, the nature of the working relationship was such that the Agency retained a considerable degree of control over Complainant's job performance. As shown above, during their eight-month working relationship, the Agency controlled the means and manner of Complainant's performance, supervised his work, furnished the equipment used and the place of work, and had the authority to terminate him. In addition, the Agency paid Complainant by the hour to provide security in the handling and transportation of all detainees - an integral part of the Agency's law enforcement mission.
CONCLUSION
Based on a thorough review of the record, the Commission REVERSES the Agency's final decision and REMANDS Complainant's complaint to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
___6/28/13_______________
Date
1 Neither party submitted a statement or brief on appeal.
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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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0120110412