0120062302
03-06-2008
Issac Taylor, Complainant, v. Margaret Spellings, Secretary, Department of Education, Agency.
Issac Taylor,
Complainant,
v.
Margaret Spellings,
Secretary,
Department of Education,
Agency.
Appeal No. 01200623021
Agency No. ED20053300
DECISION
Complainant appeals to the Commission from the agency's January 27, 2006
decision dismissing her complaint for failure to state a claim. According
to the agency, complainant alleges discrimination on the basis of race
(Black) when management engaged in inappropriate and unprofessional
actions including offensive and demeaning language, continuous belligerent
actions creating a hostile working environment, and slanderous remarks.
The agency, on July 12, 2005, dismissed complainant's complaint for
failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), finding
that complainant was not a Federal employee. Rather, the agency found
that complainant was employed by Science Applications International
Company (SAIC). Complainant appealed that decision to the Commission.
The Commission, on December 16, 2005, issued a decision remanding the
agency decision. The Commission found the record was insufficient to
render a decision and ordered the following, in pertinent part:
The agency shall conduct a supplemental investigation and supplement the
record with evidence which shows whether complainant was an employee
of the agency focusing on the factors set forth in Ma. Specifically,
the agency shall place in the record a copy of the contract between
the agency and SAIC. Thereafter, the agency shall either issue a final
decision dismissing the complaint or a letter accepting the complaint
for investigation. The supplemental investigation and issuance of the
decision or letter of acceptance must be completed within 30 calendar
days of the date this decision becomes final.
The agency, in accordance with the Commission's decision, supplemented
the record with the contract and issued a decision dated January 27,
2006, again dismissing the complaint for failure to state a claim.
Complainant appeals from that decision.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16(a).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency by
Title VII only if he may be deemed an employee of the agency or applicant
for employment with the agency.
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed
to be "employees" under section 717 of Title VII. 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 is usually 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 Zheng v. Department
of Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998);
Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. et. al. v. Darden,
503 U.S. 318, 323-24 (1992)).
It is clear in the contract between the agency and SAIC, that the
intention of the parties was to create a relationship of contractor, as
opposed to employee. In fact, complainant even recognizes that intention.
Complainant states in his affidavit that he was hired by SAIC on or about
November 11, 2003. Complainant states that on or about February 25,
2004, he was converted from temporary employee to a permanent employee
of SAIC.
Complainant states that his supervisor at SAIC was Mr. T. Complainant
argues that SAIC told him he would work at the agency in the position of
Engineering Manager. Complainant states that he was told that he would
be given additional duties typically performed by the Deputy Engineering
Manager, however, he would not receive additional compensation.
Complainant argues that Mr. T told him that after 3 months of performing
the extra duties, he would be evaluated and compensated for performing
the extra duties. However, on or about August 6, 2004, Mr. T informed
him that he was being replaced by a white male. Complainant remained
employed in an undefined status.
Complainant alleges that after he was removed from his Engineering
Manager duties, he was subjected to a hostile work environment by Mr. C.
Complainant states in his affidavit that he reported the hostile work
environment to his SAIC supervisor, Mr. T, and SAIC human resources
director.
The contract indicates that SAIC will make decisions with regard to
hires, removals, promotions, and reassignments, and SAIC will notify
the agency of the personnel action prior to the action taking place.
The contract also indicates that SAIC will provide materials such as
tools, pages, diagnostic software and utility products. The contractor
also promises to provide qualified personnel and replacement personnel
to maintain coverage in the event of absences.
We find complainant failed to show that he is an employee of the agency
and not SAIC. Thus, we find that agency's dismissal pursuant to 29
C.F.R. � 1614.107(a)(1) was proper.
The agency's decision dismissing complainant's complaint 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
March 6, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0120062302
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4 0120062302