0120123560
02-19-2013
Jannifer Hill-Keyes, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jannifer Hill-Keyes,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120123560
Agency No. PHI-12-0085-SSA
DECISION
On September 21, 2012, Complainant filed a timely appeal with this Commission from the Agency's decision dated August 24, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served the Agency under a contract as a Medical Consultant in its Philadelphia Regional Office in Philadelphia, Pennsylvania.
Complainant's contract with the Agency is under the name of Strategic HR LLC, of which she is President. Under the relevant Blanket Purchase Agreement (BPA), Complainant is not permitted to substitute her services for that of another person.
On February 1, 2012, Complainant filed a formal complaint, as amended, alleging that she was discriminated against based on her sex (female), disability, and, as applicable reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when:
1. from June 2011 onward, other medical consultants, Agency employees, and Agency supervisors variously called her, sometimes publically, "crazy," "mental," "schizophrenic," "Sybil," "bipolar," "liar," and "unfit", and publically subjected her to denigrating, demeaning, and derogatory comments about her work performance;
2. on November 29, 2011, her work station was moved from the fifth to the second floor;
3. after she filed the instant EEO complaint, her workload decreased significantly for a period of time;
4. she complained to Agency management about being harassed, and remedial action was not taken;
5. on December 5, 2011, she complained about a demeaning skeleton caricature about herself in the workplace, but it was not removed until about January 19, 2012; and
6. her BPA with the Agency was terminated on or about March 31, 2012.1
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was an independent contractor, not an employee of the Agency.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't. of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. 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 work accumulates retirement benefits;
(11) whether the employer pays social security taxes; and
(12) the intention of the parties.
See Ma v. Dep't of Health and Human Serv., supra.
Not all or even a majority of the listed criteria need be met. The above factors are designed to determine 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, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Complainant is a psychologist. As a Medical Consultant, she reviewed the evidence submitted with a social security disability claim, and using Agency regulations, policies, and forms, made a determination on whether the claimant had a medically determinable impairment and the functional capacity to perform work, and wrote an electronic report thereon. The report was used by an Agency Examiner to adjudicate the disability claim. If there was a conflict between the assessments of the Medical Consultant and the Examiner, they tried to reach a consensus, and if it was not reached matter was elevated to an Agency supervisor to resolve. Under the BPA Complainant agreed to provide medical consulting services in the specialty of psychology, and would handle that aspect of cases. Complainant spent a small percentage of her time receiving and providing training.
Factors (4), (5), (7) and (9) Indicate that Complainant may be an Employee
Complainant worked on Agency premises, and it provided her a workstation, chair, file cabinets, telephone and a computer (factor 4). Complainant started providing Medical
Consultant services to the Agency in 2005, and did so until her BPA with the Agency was cancelled in 2012 (factor 5). The Agency on its own initiative terminated the BPA, which it free to do under the terms of the BPA (factor 7). Medical assessments are an integral part of making determinations on social security disability claims, which is central to the Agency's mission (factor 9).
Factors (1) - (3), (6), (8), (10) and (11) Indicate that Complainant is not an Employee
Complainant, using her medical expertise, independently wrote reports for review by Examiners in adjudicating cases, although the Disability Quality Branch reviewed a sampling of all work by Medical Consultants and Examiners to ensure its compliance with Agency policy in the adjudication of claims, Complainant stated her "supervisor" was the Agency Contract Officer Technical Representative (COTR) for medical consultants. The COTR did not routinely review Medical Consultants' work, and only did so in response to a question by an internal customer. Complainant was assigned a queue of cases in a computer system, and worked them in accordance with varying Agency priorities, i.e., cases in her primary inventory in the order they are pulled, aged cases, and so forth. She was free to set her own hours, so long as they were from 6 AM to 6 PM, Monday through Friday. Under the BPA, the Agency recognized that contractors may have outside professional responsibilities, including practicing medicine, and indicated that services may be performed outside the above times, with advance authorization provided by the COTR. Complainant chose to sometimes work on Saturdays and Sundays. The Agency did not do performance appraisals on Complainant. Based on the above, especially Complainant's independence in writing reports based on her medical expertise that for the most part were not reviewed by her claimed supervisor, we find that factor 1 tilts toward Complainant being an independent contractor.
Complainant is a skilled medical professional whose work was usually done without supervision (factors 2 and 3). She was paid by the report she submitted (factor 6). Complainant was not provided leave, or retirement benefits, and the Agency did not pay her social security taxes (factors 8, 10, and 11).
We are unable to discern whether both the parties believed they were creating an employment or independent contractor relationship. Accordingly, factor 12 does create any inference.
Based on a weighing of all the Ma factors, we find that the Agency did not exercise sufficient control over Complainant's job to qualify as her employer for the purpose of the EEO complaint process. Accordingly, the Agency's dismissal of the complaint in this matter is AFFIRMED.
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 (S0610)
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 (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
February 19, 2013
__________________
Date
1 In defining who was involved in perpetrating the alleged discrimination; and when the incidents in issues 2, 3, and 6, occurred, we reviewed information in the counselor's report and Complainant's affidavit. The Agency defined the complaint more narrowly. We defined the complaint based upon a review of the complaint.
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0120123560
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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