01a51146
11-29-2005
Glen Knobel, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Glen Knobel v. Department of Justice
01A51146
November 29, 2005
.
Glen Knobel,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A51146
Agency No. D-03-3712
Hearing No. 100-2004-00536X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
The record reveals that complainant, a Records Examiner/Analyst at the
agency's Asset Removal Group, Washington Division, filed a formal EEO
complaint dated June 25, 2003, alleging that the agency discriminated
against him on the basis of race (White) when:
Complainant was terminated from his contract assignment as a Records
Examiner with the agency's Asset Management Group (DEA-AMG).
At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing, finding complainant is not a federal employee and outside the
Commission's jurisdiction. Alternatively, the AJ found assuming arguendo
that complainant was an employee of the agency or that the agency
was a joint employer with the contract company, complainant failed to
establish a prima facie case of race discrimination. Specifically, the
AJ found that complainant failed to demonstrate that similarly situated
employees not in complainant's protected class were treated differently
under similar circumstances.
The agency's October 12, 2004 final order implemented the AJ's decision
finding that the Commission does not have jurisdiction over complainant's
complaint. The agency noted that on July 21, 1993, it entered into
a contract with DynCorp to provide administrative support for asset
forfeiture efforts for the agency. The agency explained that Lionel
Henderson & Company, Incorporated (LHC) entered into a subcontract
with DynCorp, for the agency's Asset Removal Group. The agency stated
that LHC hired complainant to work in a contract position as a Records
Examiner/Analyst with the Asset Removal Group. The agency noted that
other LHC contract workers supervised complainant's work. The agency
stated that it had no discretion over specific duties complainant
performed; rather the agency noted it decided what work was to be
performed and identified that through contract management. The agency
stated that Person A, the agency's Acting Assistant Special Agent in
Charge of the Asset Removal Group, did not supervise or assign daily tasks
to complainant. The agency noted that in an April 30, 2003 letter to LHC,
Person A set forth perceived shortcomings in complainant's performance,
recommended that LHC seek a more suitable LHC employee to fill the
position, and advised that after May 5, 2003, complainant's access to
agency office space would not be guaranteed. The agency noted that on
May 2, 2003, LHC suspended complainant and on May 7, 2003, LHC advised
complainant that he was fired. Thus, the agency stated that complainant
was an employee of LHC and not the agency. In a footnote in its decision,
the agency stated that it does not adopt the AJ's alternative finding
that complainant failed to establish a prima facie case of discrimination.
The record contains a January 22, 2004 affidavit from Person A,
Supervisory Special Agent/Group Supervisor, stating that he never
supervised complainant, assigned daily tasks to complainant, and that
he was not responsible for the direct supervision of complainant.
Person A states that complainant's work was exclusively directed by
the LHC contract managers, which he states is in accordance with DOJ
Directive 94-1, Policy Regarding Work with DynCorp Contract Employees.
The record contains a January 21, 2004 statement from Person B, Special
Agent of the agency's Washington Division of the Asset Removal Group.
Person B stated that he was assigned to the Asset Removal Group in July
2001 and that any concerns he had about complainant were directed to
complainant's supervisors, Person X, Operations Supervisor LHC, and
Person Y, complainant's contract supervisor.
We note that the record contains a January 21, 2004 letter from LHC's
Human Resource Generalist noting that review of complainant's personnel
file and LHC's investigation of complainant conducted in May 2003,
indicate that LHC was responsible for removing complainant from the
Asset Forfeiture Program because the agency's Washington Field Office
requested his replacement and denied him access to the building.<1>
The record also contains four �Formal Disciplinary Letters� signed
by Person X and Person Y, LHC contract personnel, and the LHC Human
Resources contact. These letters reveal complainant was issued three
informal counseling letters in April 2003, and one suspension in April
2003, in accordance with LHC policy.
Further, the record contains complainant's January 19, 2004 affidavit in
which he states that he was a contract worker for the agency and was hired
by LHC. He states that his immediate supervisors were Person X and Person
Y, both LHC contract workers. He states Person X was responsible for
day to day activities of the contract staff of the Washington location.
He explains that Person Y was responsible for overall contract compliance
for the contract staff at all of the Washington Division's locations.
Complainant also states that his team leader was Person Z, a LHC contract
worker, who managed the work assignments of one of the two teams at the
Washington Office. Complainant explains that he was assigned to the Asset
Removal Group as a contractor for almost nine years. He states that he
worked in the Washington Office all of that time, except he spent four
years at the Baltimore Office. Complainant states there was no agreed
upon duration for the term of his assignment. Complainant admits that
the agency had no discretion over the duties he performed and he noted
he reported only to his contract supervisors. Complainant states that he
did not sign a written agreement/contract, other than a confidentiality
statement. He states that LHC was a sub-contractor to DynCorp, who
had the agency Asset Forfeiture Contract, under which they operated.
Further, complainant states that specific points of contract employee
duties are outlined in a DOJ 94-1 memorandum.
Finally, the record contains a copy of Directive 94-1, Policy Regarding
Work with DynCorp Contract Employees. The Directive notes that contract
employees are not considered government employees. The Directive states
that DynCorp must do all recruiting, screening, and selection of contract
employees. The Directive also specifies that a contract employee may
not work directly for or be supervised by a federal government employee
without express statutory authority. The Directive notes that the Asset
Forfeiture Fund statute does not provide such authority and notes that the
day to day supervision of contract employees is done by the contractor.
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 id.
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 the record supports the agency's
determination that complainant was not an employee of the agency at
the time of the alleged discrimination. Complainant does not dispute
that he was not supervised by agency employees. Additionally, we note
that in both his formal complaint and in his January 19, 2004 affidavit
to the investigator, complainant states that he was contracted as a
Records Examiner/Analyst to work at the agency. Further, the record
reveals that LHC solely had the authority to terminate complainant's
employment. Moreover, we find that the agency was not a joint employer of
complainant in light of it not having sufficient control over the means
and manner of complainant's work. See Enforcement Guidance: Application
of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997).
Based on the record, we find that complainant was not an agency employee.
We do not address the merits of the instant complaint in this decision.
Accordingly, the agency's decision dismissing complainant's complaint
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)
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
November 29, 2005
__________________
Date
1Although the LHC letter is dated January 21,
2003, we note that the letter appears to have been written on January
21, 2004.