Edward M. Verduzco, Complainant,v.Naomi C. Earp, Chair, Equal Employment Opportunity Commission,1 Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120065282 (E.E.O.C. Feb. 23, 2007)

0120065282

02-23-2007

Edward M. Verduzco, Complainant, v. Naomi C. Earp, Chair, Equal Employment Opportunity Commission,1 Agency.


Edward M. Verduzco,

Complainant,

v.

Naomi C. Earp,

Chair,

Equal Employment Opportunity Commission,1

Agency.

Appeal No. 01200652822

Agency No. 200600009

DECISION

On September 22, 2006, complainant filed an appeal from a final agency

decision (FAD) dated July 19, 2006, concerning his equal employment

opportunity (EEO) complaint alleging employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely

and is accepted pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

Complainant is an employee of the San Diego Police Department. He filed

an EEO complaint alleging that the agency discriminated against him

based on disability (association with an individual with a disability)

and reprisal for prior protected EEO activity when:

1. On or about September 22, 2005, the agency's San Diego Area Office

issued a no cause finding in his discrimination claim against the San

Diego Police Department;

2. after his claim against the police department was reassigned to the

agency's EEOC San Francisco District Office for reconsideration to avoid

the appearance of impropriety, that office did not give complainant 10

days of due process to submit exhibits; and

3. thereafter, the agency's EEOC San Francisco District Office issued

a no cause finding on complainant's claim of discrimination against the

San Diego Police Department.3

Complainant claims an association with Employee 1, an agency employee who

filed an EEO complaint alleging that she was subjected to discrimination

by the agency. According to complainant, Employee 1 is legally blind

and has multiple sclerosis.

Complainant states from January 2005 to March 16, 2006, he assisted

Employee 1 with her EEO case as a reader and personal assistant.

Specifically, there was a three day hearing in Los Angeles. Complainant

drove Employee 1 to the hearing from San Diego and served as her reader,

and returned her to San Diego. Complainant avers he was also served

to perform any emergency medical actions necessary. For this trip,

complainant states that the agency reimbursed him for his hotel, gas,

and meal expenses. Record documentation shows that as a reasonable

accommodation for the above hearing, Employee 1 requested that the

agency pay complainant's travel costs as a reader, assistant and

driver. Utilizing its reasonable accommodation fund, the agency paid

complainant's travel and per diem costs in the amount of $647.19.

Complainant states that another part of the hearing was later in San

Diego for three days, and he served as complainant's reader. He avers

that the rest of the hearing was held telephonically, and he assisted

complainant with her direct and cross examination. Complainant adds

that he assisted Employee 1 in the preparation for the hearing.

Other than the part of the hearing held in Los Angeles, complainant

does not contend that the agency reimbursed his expenses or that he was

compensated in any way by the agency, and there is no evidence of such.

According to the FAD, Employee 1 selected complainant to assist her,

and he was an acquaintance. Complainant does not contest this.

The FAD dismissed the complaint on the grounds that complainant did not

have standing since he was not an applicant or employee of the agency.

29 C.F.R. � 1614.103 & .107(a)(1). It also found that the complaint

failed to state a claim on various grounds.

ANALYSIS AND FINDINGS

The matter before us is whether the agency properly dismissed

complainant's complaint. EEOC Regulation 29 C.F.R. �1614.103(a)

provides that individual and class complaints of employment

discrimination, including allegations of retaliation, prohibited

by Title VII (discrimination on the bases of race, color, religion,

sex and national origin), the ADEA (discrimination on the basis of

age when the aggrieved individual is at least 40 years of age) and the

Rehabilitation Act (discrimination on the basis of disability) shall be

processed in accordance with Part 1614 of the EEOC regulations. Further,

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 and to all employment policies or practices

affecting employees or applicants for employment. In addition, the

U.S. Supreme Court has stated that an employee is aggrieved when

some personal loss or harm has been suffered with respect to a term,

condition or privilege of employment. See Trafficante v. Metropolitan

Life Insurance Co., 409 U.S. 205 (1972).

The Commission must determine whether the complainant was an agency

employee or applicant for employment, or was connected to the agency with

"aspects of the relationship that are indicative of an employer/employee

relationship." Longergan v. Department of Veterans Affairs, EEOC

Request No. 05970406 (July 10, 2000). Volunteers usually are not

protected "employees." However, an individual may be considered an

employee of a particular entity if, as a result of volunteer service,

he receives benefits such as a pension, group life insurance, workers'

compensation, and access to professional certification, even if the

benefits are provided by a third party. The benefits constitute

"significant remuneration" rather than merely the "inconsequential

incidents of an otherwise gratuitous relationship." A volunteer may

also be covered by EEO statutes if the volunteer work is required for

regular employment or regularly leads to regular employment with the

same entity. In such situations, discrimination by an agency operates to

deny a complainant an employment opportunity. EEOC Compliance Manual,

Section 2: Threshold Issues, 2-III.A.1.c, page 2-28 (May 12, 2000)

(available at www.eeoc.gov).

Applying the above tests, we find complainant was a volunteer, not an

employee of the EEOC. Complainant received no wages. He received

only a one time reimbursement for travel expenses. Moreover, there

is no evidence the service complainant provided regularly leads to

regular employment with the agency, or that he was even seeking such

employment.

The Commission has applied the common law of agency test to determine

whether an individual is an agency employee versus a 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). 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 Ma, 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.

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 of complainant. See generally, Baker

v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).

As complainant is not an employee or applicant for employment with the

agency, the FAD properly dismissed his complaint. For this reason,

we need not rule on whether his complaint otherwise states a claim.

CONCLUSION

Based on a through review of the record and for the foregoing reasons,

the FAD 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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

February 23, 2007

__________________

Date

1 In the instant matter, the Equal Employment Opportunity Commission

(EEOC) is both the respondent agency and the adjudicatory authority. The

Commission's adjudicatory function is separate and independent from

those offices charged with the in-house processing and resolution of

discrimination complaints. For the purposes of this decision, the term

"Commission" is used when referring to the adjudicatory authority and

the term "agency" is used when referring to the respondent party in

this action. The Chair has recused herself from participation in the

initial decision and the request for reconsideration.

2 The Commission's September 25, 2006, letters to the parties

acknowledging the appeal identified it as docket number 01A65282.

Due to changes in our computerized records tracking system, the appeal

docket number has been restyled to 0120065282.

3 It appears claim 3 occurred after complainant filed his complaint.

Complainant raises it on appeal. Because claim 3 is so closely related

to claims 1 and 2, and there is sufficient information in the record to

rule on the matter, we will do so here.

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0120065282

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, DC 20507

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