0120081639
08-07-2008
George S. Sinko, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
George S. Sinko,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081639
Agency No. ARFTLEAV07MAY04513
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 10, 2007, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant filed his formal complaint alleging that he was subjected
to discrimination on the basis of age (63) when:
1. On May 9, 2007, complainant was removed from working under the
subcontract between BAE Systems, Inc. (BAE) and Echota Technologies
Corporation (Echota); and
2. Later in May 2007 BAE did not select complainant for continued
employment at Fort Leavenworth with BAE where BAE and the agency would
be joint employers.
The agency dismissed claim 1 because it failed to state a claim, and
dismissed claim 2 by omission.1
The record indicates that complainant worked for Echota as an Area
Specialty Officer (ASO) at the agency's Fort Leavenworth base in
Leavenworth, KS. BAE contracted with the agency to provide a workforce
for the Human Terrain Systems Program (HTS). Complainant was assigned
by Echota to HTS at Fort Leavenworth under a subcontract between BAE
and Echota.
Prior to the allegedly discriminatory event, a representative from the
agency traveled to Fort Leavenworth to investigate complaints about
the working environment within HTS. As a result of his investigation,
the representative met with officials from Echota and suggested that
personnel changes needed to be made. In this meeting, complainant
was singled out as a problem that needed to be addressed. The record
reflects that Echota disputed any problems within HTS, and on May 11,
2007, unilaterally withdrew its involvement in HTS. The record is
unclear whether Echota terminated complainant's employment as a result.
Subsequently, complainant unsuccessfully applied for employment with
BAE for the purpose of continuing in HTS.
The agency dismissed the complaint finding that complainant was not an
employee of the agency for purposes of the ADEA. In so holding, the
agency determined that Echota was responsible in at least ten different
ways for complainant's terms of employment. Accordingly, the agency found
that it did not have sufficient control over complainant's employment to
afford it jurisdiction over the complainant's claim. Complainant filed
the instant appeal.
On appeal, complainant argues that that the agency has ultimate
control over HTS, and therefore he is an employee of the agency, not an
independent contractor. Thus, complainant argues, the record reflects
that he successfully states a claim with respect to both claims.
The agency argues in opposition that the record shows complainant is
an independent contractor and not an employee. In support, the agency
analyzes the several ways in which Echota employs complainant.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. Id. �� 1614.103,
1614.106(a).
The Commission must first determine whether the complainant was an
agency employee or applicant for employment within the meaning of
the ADEA. 29 U.S.C. � 794a(a). The Commission has applied the common
law of agency test to determine whether an individual is an agency
employee under Title VII. See Ma v. Dep't of Health & Human Servs.,
EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide
Mutual 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 worker accumulates retirement benefits; (11) whether the "employer"
pays social security taxes; and (12) the intention of the parties. See
id. at n.4. 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 . . . all of the incidents of the relationship must be assessed
and weighed with no one factor being decisive." Id. (quoting Natl Labor
Relations Bd. v. United Ins. Co. of Am., 390 U.S. 254, 258 (1968)).
Under the Commission's Enforcement Guidance: Application of EEO Laws to
Contingent Workers Placed by Temporary Employment Agencies and Other
Staffing Firms (December 3, 1997)(available at www.eeoc.gov.), we
recognize that a "joint employment" relationship may exist where both
the agency and the staffing firm may be joint employers. There are
different types of staffing firms. Those that contract with a client
to perform a certain service on a long-term basis and place its own
employees, including supervisors, at the client's work site to carry
out the service are contract firms. Id. at Introduction section.
Clients of contract firms, including the federal government, qualify
as employers of workers assigned them if the clients have sufficient
control over the workers, regardless of whether the worker is on the
federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal
No. 01A45313 (March 16, 2006). For example, the client is an employer
of the worker if it supplies the work space, equipment, and supplies,
and if it has the right to control the details of the work performed,
to make or change assignments, and to terminate the relationship.
Enforcement Guidance: Application of EEO Laws to Contigent Workers
Placed by Temporary Employment Agencies and Other Staffing Firms,
Staffing Service Work Arrangements section. The test to determine
employment status turns on whether the employer controls the means
and manner of the worker's work performance. EEOC Compliance Manual,
Section 2: Threshold Issues, 2-III.A.1, page 2-25.
Echota was responsible for complainant's supervision. Complainant's
direct supervisor was on site at Fort Leavenworth. Agency Opp. Exs. H, I.
Further, the contract terms under which the Echota operated specifically
provided that the agency could not directly supervise complainant at
any time. Agency Opp. Ex. A at 59.
Echota was further responsible for personnel decisions relating to
complainant. Echota hired complainant, assigned him to HTS, established
his wage and pay structure, established his hours, withheld the applicable
taxes, handled complainant's leave requests, and had sole authority to
terminate complainant. See Agency Opp. Exs. H, I, J.
The agency's only duty to complainant was to provide a computer and
standard office supplies. Agency Opp. Exs. H, I. Further, there is no
evidence that any agency actions that caused complainant to be removed
from HTS at Fort Leavenworth resulted in complainant's termination.
See, e.g., Ames v. Dep't of the Air Force, EEOC Appeal No. 0120073926
(Feb. 12, 2008).
Complainant was removed from HTS when Echota decided to terminate
its involvement in HTS. Agency Opp. Ex. L. In fact, complainant's
second-line supervisor stated that all employees previously involved
with HTS "at their choice, will either transfer to BAE and remain on
the HTS project or Echota will place them in a part-time on-call status,
keeping them as Echota employees until something else is available." Id.
This statement indicates that the agency did not, in any way, control
the terms of complainant's employment with Echota.
With respect to claim 2, however, we find that the record contains
insufficient information to warrant dismissal. BAE implemented plans
to take over HTS operations at Fort Leavenworth following Echota's
withdrawal. Complainant argues that he was discriminated against
when his application for continued employment with BAE was rejected.
In support of his claim, complainant provided a copy of an email from
BAE's representative saying that complainant's resume was "forwarded to
the government for their evaluation and rank. . . . [T]he government makes
the final call." Complaint Ex. 3. In that email, BAE's representative
said that BAE's only role was to collect resumes and submit them to
the government, who then made the final determination. Id. The email
indicates that BAE would be more receptive to complainant's application
for positions not associated with an agency contract. Id.
As a matter of law, the record does not reflect whether complainant,
through his application to BAE, meets the common law of agency test
and may be properly viewed as a prospective agency employee for the
purposes of the ADEA. For example, despite the statements of BAE's
representative, the record contains insufficient information regarding
BAE's hiring criteria and the degree of control the agency retained over
the position for which complainant applied (control over hiring method
is a significant factor in determining control).2 The evidence in the
record is insufficient to properly apply Ma.
Accordingly, we find that the agency's dismissal of claim 1 was
appropriate, but dismissal of claim 2 was in error and we MODIFY the
agency's final decision and REMAND with instructions below.
ORDER
The agency is ordered to process claim 2 in accordance with 29
C.F.R. Part 1614. The agency shall acknowledge to the complainant that
it has received the remanded claim within thirty (30) calendar days of
the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z0408)
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
August 7, 2008
__________________
Date
1 Complainant properly raised claim 2 with his EEO counselor and stated
it in his formal complaint. He raises it again on appeal. In its notice
of right to file a complaint, the agency recognized that complainant
raised claim 2.
2 McMullin v. Ashcroft, 337 F. Supp.2d 1281, 1294 (D. Wyo. 2004).
??
??
??
??
2
0120081639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120081639