01A30548_r
09-23-2003
Elizabeth G. Mayonado, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service) Agency.
Elizabeth G. Mayonado v. Department of Defense (Defense Finance and
Accounting Service)
01A30548
September 23, 2003
.
Elizabeth G. Mayonado,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service)
Agency.
Appeal No. 01A30548
Agency No. DFS-IN-RO-02-026
DECISION
In a formal EEO complaint dated May 2, 2002, complainant claimed that
she was discriminated against on the bases of her race (Filipino), color
(brown), sex (female), national origin (Filipino), and age (dob 11/24/41)
when on March 21, 2002, the agency did not recommend her for a position
with Advanced Communications Systems (ACS). Complainant had worked
as a Systems Analyst for Planned Systems International, Inc. (PSI), a
subcontractor to Computer Sciences Corporation (CSC). CSC was a general
contractor under contract with the agency. Complainant had provided
technical support to the agency for its Defense Financial Integrated
System Support project (DFISS).
In March 2002, PSI lost the DFISS contract to ACS, a subcontractor to the
general contractor, Lockheed Martin. The record reveals that the agency
made recommendations to ACS as to who to hire for the DFISS project.
Complainant was not included among the 33 former employees of PSI that
the agency recommended for hiring by ACS.
In its decision dated September 24, 2002, the agency dismissed the
complaint on the grounds that it failed to state a claim. The agency
determined that complainant was not an employee of the agency nor an
applicant for agency employment. The agency concluded that complainant
lacked standing to bring a complaint of discrimination against the agency.
On appeal, complainant argues that the agency and ACS were joint
employers for the purpose of selecting the personnel to be hired for
the ACS contract. Complainant contends that the agency controlled ACS'
hiring process. Complainant states that the agency refused to approve her
employment with ACS. Complainant notes that the agency Director of the
Technology Services Organization acknowledged that the agency reviewed
the people that had worked for PSI and made recommendations to ASC as
to which employees were top priority, acceptable or not acceptable.
Complainant states that 33 of 44 PSI employees were recommended by the
agency for hiring by ACS. According to complainant, all of the employees
recommended by the agency were hired by ACS and none of the employees
not recommended by the agency were hired by ACS. Complainant maintains
that she was not hired by ACS solely because the agency did not recommend
her hiring.
In response, the agency asserts that the agency did not supervise
complainant or evaluate her work, and the agency was not involved
in planning her work schedule. The agency states complainant was
supervised by a PSI official and her team lead was a PSI official.
The agency asserts that it is not a party to the contract between Lockheed
Martin and ACS. The agency maintains that it has no authority to hire
contractor employees. The agency argues that complainant was not an
employee or an applicant for employment with the agency. The agency
states that complainant was paid by PSI and received benefits from PSI,
and had she been hired by ACS, she would have received benefits and
been paid by ACS. The agency maintains that social security taxes would
have been paid by ACS, just as they were paid by PSI. The agency argues
complainant's work as a Systems Analyst is not inherently governmental
in nature and rather is an integral part of the work performed by ACS.
According to the agency, it was clearly complainant's intention to apply
for a position with ACS as evidenced by her attendance at an ACS open
house, her filling out an application for employment with ACS, and her
following up on the hiring process with ACS employees. The agency asserts
that if its involvement in the hiring process is by itself sufficient
to qualify complainant as an applicant for federal employment, then the
agency would be a joint employee of every individual or entity from whom
a recommendation was solicited, received and followed.
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. 01962390 (June
1, 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 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. 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, was not appreciably
different from the common law of agency test. See Id.
Upon review, we find that complainant was not an agency employee nor an
applicant for employment with the agency. Further, we find that the
agency can not be considered a joint employer of complainant. It is
evident that complainant was employed by the subcontractor PSI and was an
applicant for employment with ACS. We note that the agency had no control
over complainant's leave or pay when she was with PSI and that PSI set
complainant's work hours and directly supervised her work. Complainant's
social security taxes were paid by PSI and would have been paid by ACS.
The agency did not provide complainant with a performance appraisal
during her work on the DFISS project. We observe that the agency clearly
had significant influence in ACS' decision not to hire complainant.
ACS hired only those former employees of PSI that were recommended for
employment by the agency. A Business Manager for Lockheed Martin stated
that heavy reliance was placed on the agency's recommendations because
ACS had eight days to establish operations and one of the most critical
factors was hiring people with experience. Even if the agency's position
against complainant was the primary reason she was not hired by ACS, this
does not render the agency potentially liable for discrimination under
a third party interference theory. In contrast to private employers,
a federal agency that does not qualify as a joint employer of the worker
assigned to it cannot be found liable for discrimination under a �third
party interference� theory under Title VII, the ADEA, and Section 501
of the Rehabilitation Act. Enforcement Guidance: Application of EEO
Laws to Contingent Workers Placed By Temporary Employment Agencies and
Other Staffing Firms, EEOC Document Number 915.002 (1997).
Accordingly, the agency's decision dismissing the complaint on the
grounds of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)
was proper and 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 23, 2003
__________________
Date