01a53191
10-27-2005
Jennie E. Barnes, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Jennie E. Barnes v. Department of Homeland Security
01A53191
October 27, 2005
.
Jennie E. Barnes,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53191
Agency No. 040385 and 3026050
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated June 20, 2002, complainant alleged
that she was subjected to discrimination on the bases of disability<1>
(mulitple sclerosis) and age (D.O.B. not provided) when:
her duties were changed to include enlistment package data entry and
pre-screen
validation without training [she was required to produce these packages
at an unrealistic speed];
she was subjected to harassment in the form of verbal abuse and maligning
conversations with her supervisor that were directly and indirectly
related to her age and disability;
she was required to take a work evaluation test on June 20, 2001, that
in effect
cancelled her earlier granted request for a reasonable accommodation;
on July 24, 2001, a younger individual was hired allegedly to input data
[her
supervisor pointed out how quickly a non-disabled individual could
input data];
she was placed on a performance improvement plan on September 21, 2001
[and
required to use outdated materials that made it impossible to complete
the package based on the established standard]; and
6. she was discharged on October 10,2001, because she could not complete
an enlistment package in the required time frame.
The agency previously dismissed complainant's complaint pursuant to
the regulation set forth at 29 C.F.R.� 1614.107(a)(l), for failure to
state a claim on the grounds that complainant was not a Federal employee.
The agency found that complainant was an employee of DynCorp, a contractor
with the agency. The agency further stated that complainant was offered
and accepted a position by DynCorp on December 10, 1999. Complainant
appealed and the Commission remanded the case back to the agency for
further processing. Barnes v. Department of Homeland Security, EEOC
Appeal No. 01A30071 (February 19, 2004). The Commission ordered the
agency to analyze whether or not complainant was an employee of the
Federal Government or of a private contractor, using the standards set
forth in Ma v. Department of Health and Human Services, EEOC Appeal
No. 01962390 (June 1,1998). Following the agency's decision addressing
the Ma standards, Complainant appeals.
The Commission notes that EEOC Regulation 29 C.F.R. 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he or she has been discriminated against by the agency because of race,
color, religion, sex, national origin, age or disabling condition. See 29
C.F.R. �� 1614.103, .106(a). Accordingly, a complaint may be dismissed
for failure to state a claim when the complainant is not an employee or
applicant for employment with the federal government.
The Commission has applied the common law of agency test to determine
whether complainants are agency employee under laws enforced by
the EEOC. See Ma v. Department of Health and Human Services, (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.
Under this test, the Commission, after balancing many factors, finds that
complainant was not an employee of the agency. The record contains an
offer of employment to complainant, dated December 10, 1999, from DynCorp,
a subcontractor on a SIGNAL Corporation contract to provide services to
the Coast Guard recruiting Command. Complainant's offer of employment,
performance appraisal and termination notice were on DynCorp stationary
and signed by a DynCorp official. Complainant's supervisor of record was
a DynCorp employee pursuant to the provisions of the DynCorp contract with
the agency which stated: �The Contractor shall provide all management,
administrative, clerical, and supervisory functions required for the
effective and efficient performance of this contract.� In addition,
complainant was paid by DynCorp, which also set her hours of work, leave
accrued and paid her social security taxes. She did not accumulate
federal retirement benefits. Her work as an administrative assistant
was not inherently governmental. From the weight of this evidence
it appears that all the important indicia of employment--hiring, means
and manner of work performance, evaluations and termination--were all
controlled by DynCorp. Complainant has not presented evidence of record
to establish that the agency, rather than DynCorp, exercised the real
control over complainant's employment.
Under such circumstances, the Commission determines that complainant
was not an agency employee under the purview of our regulations.
Accordingly, the agency's final 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
October 27, 2005
__________________
Date
1For purposes of this decision the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).