0120122111
06-11-2013
Isil Mengi, Complainant, v. Dick Lobo, Executive Director, Broadcasting Board of Governors, Agency.
Isil Mengi,
Complainant,
v.
Dick Lobo,
Executive Director,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120122111
Agency No. OCR-12-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 19, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in Video Editing Services at the Agency's Voice of America facility in Washington, D.C.
On November 21, 2011, Complainant contacted the EEO office concerning events that had occurred in the workplace. On January 11, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when:
1. In October 2011, Complainant was informed that effective November 1, 2011, all of her four regularly assigned shifts she has been working since 2006 would be cut. Complainant noted that other male coworkers retained their shifts.
2. After October 12, 2011, Complainant learned that one male colleague had been assigned six regular shifts per week for at least the past year, while Complainant had only four and those were eliminated.
3. Beginning in June 2010 and continuing to October 2011, the Editing Supervisor required Complainant to provide justification when she asked to leave work early.
4. Beginning in June 2010 and continuing to October 2011, the Editing Supervisor ignored Complainant's suggestions, while adopting the suggestions of male coworkers.
5. Beginning in July 2010 and ongoing, several male coworkers reported Complainant for not being at her work station, although Complainant was in a private work station pumping breast milk during this time.
6. On June 1, 2010, one of Complainant's shifts was cut.
7. In May 2010, Complainant was not selected for a career editor position.
8. In or about September 2009 and continuing through December 2009, Complainant was subjected to harassment by a male coworker when the following incidents occurred:
a. he accused her of lying to avoid work and being lazy for using a room that was not assigned to her on those particular days;
b. he made negative statements about Complainant to the staff, including that she was lazy;
c. he put his foot in the door to stop Complainant from closing it after she told him to get out of her work room and to leave her alone;
d. he walked towards Complainant and refused to move aside so she could pass through a narrow corridor; and
e. management delayed taking action to stop the harassment.
The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding that Complainant lacked standing to file a complaint because she was an independent contractor working with the Agency under a blanket purchase agreement dated July 15, 2010, and not an employee for purposes of the 29 C.F.R. Part 1614 complaint process.
The Agency also noted that Complainant alleged she was not selected for a career position in May 2010. The Agency indicated that Complainant's initial EEO contact occurred in November 2011, over a year after the non-selection. As such, the Agency dismissed this claim for untimely EEO Counselor contact.
This appeal followed without specific comment.
ANALYSIS AND FINDINGS
Failure to State a Claim
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. 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.
The Commission has applied the common law of agency test to determine whether an individual can be considered an agency employee for the purposed of the Part 1614 complaint process. See Ma v. Dep't of Health and Human Serv., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Id. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). The federal government may qualify as an individual's employer if it has sufficient control over the worker, regardless of whether the worker is on the federal payroll. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, page 2-25.
In the complaint file at hand, the Agency submitted a copy of the EEO Counselor's report where the EEO Counselor stated that she reviewed the blanket purchase agreement; a memorandum from Complainant; and a memorandum from an Agency official. On Complainant's formal complaint, Complainant included her memorandum, arguing that she should be considered an employee for purposes of Part 1614. However, the Agency failed to include the purchase agreement or the memorandum from its official with the record. As such, the only evidence we have to rely upon is Complainant's memorandum.
Factors 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 14 Tend to Show Complainant is an Agency Employee
Upon review of the record, we find that these factors tend to show that Complainant is an Employee. Complainant has been working at the Agency continuously since October 2006. It appears that the Agency can terminate the relationship with Complainant when it so chooses to do so. The assignments for Complainant are set by the Agency. The work of editing that Complainant performs is essential to the Agency's mission of producing news videos for broadcast to world media markets. Complainant states that she only works for the Agency and has no staff or assistance from outside of the Agency. She sees herself as performing work for the Agency.
Complainant indicated that the job she does for the Agency is done at the Agency's workplace in her assigned area using Agency equipment, including specific editing software which is maintained and upgraded by the Agency. Further, Complainant stated that there are Agency dictated protocols which she must follow as provided to her by supervisors from the Agency. In addition, Complainant indicated that the work she performs is stored on Agency servers.
Complainant also explained that the assignment dictates the manner of her job performance. She stated that she arrives at work where she is assigned a producer. The producer, an employee of the Agency, takes Complainant to her assigned office and identifies sources of video and voice-over information. She performs the editing assignment per instructions given by the Agency producer. The amount of time she has to work is based on the Agency's supervisors, who determine the priority of Complainant's work assignments. She also states that her shifts and exact assigned hours are set by the Agency where she works eight hours and 45 minutes per day with a 45-minute lunch break. Complainant may not get leave, however she states that she had to sign in and out at the beginning and end of her shift and if she were to leave early, she would have to ask her Agency supervisor for permission with sufficient advance notice. Complainant also states that she has received emails from a particular supervisor regarding additional direction on video editing such as the use of a particular server to store specific data, how to maintain logs, and authorizing video editors to mix video formats.
Factors 12, 13, and 15 Tend to Show Complainant Is Not An Agency Employee
These factors tend to show that the Agency is not Complainant's employer. Specifically, the parties are connected by a purchase agreement; Complainant receives no benefits directly from the Agency such as insurance or retirement benefits; and Complainant is not considered an employee for purposes of social security.
We note that Complainant stated that she was interviewed by the Agency and then, in essence, asked to work for the Agency. Despite having an agreement, Complainant believed that she was an employee of the Agency. Therefore, factor 15 does not point to either direction.
Based on the legal standards and criteria set forth herein, we find that the Agency exercises sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process. We also note that we have previously found that an individual in a similar video editing position with the Agency working under a blanket purchase agreement was also an employee for the purposes of using the Part 1614 complaint process. See Tammie M. Alark v. Broadcasting Board of Governors, EEOC Appeal No. 0120072047 (August 2, 2007), request to reconsider denied, EEOC Request No. 0520070901 (October 15, 2007). Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate.
Untimely EEO Counselor Contact
The Agency also dismissed claim 7, concerning a non-selection, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely raising the matter with the EEO Counselor.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
In claim 7, Complainant indicated that she applied for, but was not selected for, a career editor position in summer 2010. Complainant did not raise the non-selection with an EEO counselor until November 2011, well over a year after the selection had been made. Complainant provided no reason for her delay. As such, we determine that this claim, as a separate and discrete claim, was properly dismissed as untimely pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of claim 7, and REVERSE the Agency's dismissal of claims 1 - 6 and 8. These claims are and REMANDED for further processing in accordance with the Order set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (claims 1 - 6 and 8), in accordance with 29 C.F.R. � 1614.108 et seq. 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 (T0610)
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 (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
June 11, 2013
__________________
Date
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0120122111
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122111