0120132014
09-17-2013
Jarrett A. Murphy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jarrett A. Murphy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120132014
Agency No. 200P-0600-2013101090
DECISION
On April 19, 2013, Complainant filed a timely appeal with this Commission from the Agency's decision dated March 19, 2013, dismissing his 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 for Associated Health Professionals, Inc. serving the Agency as a Medical Instrument Technician at its Veterans Affairs Medical Center (VAMC) in Long Beach, California. He performed electrocardiograms (EKGs).
On January 14, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on his race (White) and sex (male) when on November 9, 2012, his contract or service with the Agency was terminated.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was an employee of Associated Health, not the Agency.
On appeal Complainant makes no comment.
ANALYSIS AND FINDINGS
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 is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, 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. 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.
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 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.
It is uncontested that the majority of the factors point to a joint employment relationship: Complainant was required to attend Agency orientation and training, he was supervised by an Agency employee who did his performance evaluation, his schedule was set in accordance with the needs of the Agency and he needed its permission and that of Associated Health prior to taking leave, he could be subject to random drug testing by the Agency, his work was central to the Agency's mission and performed on its premises using Agency equipment, it is highly unlikely Complainant was allowed to hire and pay assistants, he was not engaged in his own distinct business, he was paid for hours worked, he was required to be well groomed and wear professional attire when serving the Agency, he served the Agency for nine months, and the Agency had authority not to accept his services (factors 1, and 3 - 11).
Some factors point to the Agency not being an employer of Complainant: Complainant's work required a high level of expertise, Associated Health, not the Agency, provided him with benefits such as workers' compensation and professional liability insurance and paid his wages and the employer side of social security tax and did his income tax withholdings; and he did not accrue leave with the Agency (factors 2, 12, 13). It is unclear whether both the Agency and Complainant viewed Complainant as an employee or contractor.
The record reflects that on or about November 10, 2012, an area within the Agency hospital decided it no longer wanted Complainant's services, and he was moved to another area of the Agency hospital. On or about November 25, 2012, the nurse manager in the new area decided she no longer wanted Complainant's services. Thereafter, Complainant continued to be employed by Associated Health at a different location. A significant factor in determining whether an Agency is an employer is whether it has the power to terminate an employee. This is especially true here since Complainant's claim regards the termination of his services. While the Agency had the power to cut off Complainant's services, this did not equate to the power to terminate, as evidenced by Associated Health continuing to employ him. Cf. Pietsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009)(Agency's power to terminate individual's services was tantamount to removal power where the contractor engaged the individual solely to provide services to the Agency, and once the Agency terminated the individual's services the contractor also cut off its relationship with the individual). Given this, and that Associated Health paid Complainant and provided him his benefits, we find that the Agency did not jointly employ Complainant.
The FAD 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
September 17, 2013
__________________
Date
2
0120132014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132014