01A25033_r
09-09-2003
Jesse McKinley, Sr., Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Jesse F. McKinley, Sr. v. General Services Administration
01A25033
September 9, 2003
.
Jesse McKinley, Sr.,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A25033
Agency No. GSA01NCRWPJFM25
DECISION
On August 23, 2001, complainant filed a formal EEO complaint wherein he
claimed that he was discriminated against on the basis of his disability
(prosthesis below the right knee) when the agency denied his request
for a waiver of a GSA Certification Card Form 3257, thus prohibiting him
from working as a security guard under any agency, Nation Capital Region,
security guard contract. Complainant had worked as a contract guard at
the Ronald Reagan Building in Washington, D.C.
In its decision dated August 15, 2002, the agency dismissed the complaint
on the grounds that it failed to state a claim. The agency determined
that complainant was not an employee of the agency, but rather an employee
of Coastal International Security, Inc. (hereinafter referred to as CIS).
The agency stated that CIS had entered into a contract with the agency to
provide security guard services. The agency determined that complainant
was hired as a security guard by CIS and assigned by CIS to work at
the agency building. According to the agency, complainant was not
supervised by agency staff or paid by the agency for work performed.
The agency stated that complainant's supervisors were CIS employees and
that CIS invoiced the agency for work performed by CIS employees under
the contract. The agency noted that the contract between the agency and
CIS provided that CIS was responsible for job assignments, scheduling,
performance, and discipline of contract guards.
On appeal, complainant states that he had been employed as a security
guard at the agency's Ronald Reagan Building and International Trade
Center since 1997. Complainant states that since 1998, he has been
directly employed by CIS pursuant to a contractual agreement between the
agency and CIS. Complainant notes that officials from CIS attempted to
persuade the agency that his work performance warranted an opportunity
to continue his employment under the contract. Complainant argues
that he had a joint employment relationship with the agency and CIS.
Complainant maintains that the agency had a greater right to control
the relevant terms and conditions of his employment. Complainant notes
that complainant works at the agency's building, follows extraordinarily
specific employment duties set forth by the agency, and is assigned
specific work hours by the agency. Complainant argues that in light
of the glowing commendations sent by CIS officials to the agency, it is
clear that the agency, and not CIS, terminated his position.
In response, the agency asserts that it is evident that complainant
is not an employee of the agency based on the intent of the parties,
the lack of agency control over complainant's manner and means of job
performance, the method of payment, the lack of employee benefits from
the agency, and the method of termination. The agency maintains that
no agency official observed, directed, or supervised complainant's work
on a daily basis. The agency states that CIS supervised complainant
directly, set his work hours, and determined how he could best perform his
work on a daily basis. The agency notes that CIS paid complainant his
wages and deducted all social security, state taxes, and federal taxes.
Additionally, the agency states that CIS was responsible for providing
complainant with insurance, worker's compensation benefits, and other
employee benefits. The agency asserts that complainant did not accrue
any employee benefits from the agency, such as annual leave, sick leave,
or retirement. According to the agency, complainant did not receive
any performance appraisals from the agency. The agency notes that
complainant was required to schedule and request leave through CIS.
The agency asserts that CIS hired complainant and placed him at the
Ronald Reagan Building under its contract with the agency. According to
the agency, CIS was responsible for ensuring that complainant met the
medical requirements set forth in the contract. The agency states that
a physician hired by CIS determined that complainant did not meet the
requirements of the contract, thereby leading to his non-certification.
With regard to termination capability, the agency states that although
it refused to certify complainant's suitability for performance on its
contract with CIS, the authority to terminate complainant rested at all
times with CIS. The agency notes that complainant remained employed
with CIS and was offered an assignment at another location pursuant to
another contract.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June
1, 1998) (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 Ma v. Department of Health and Human Services, supra.
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.
Upon review, we observe that it is the agency's position that complainant
was employed by the contractor CIS. The agency stated that it had no
control over complainant's leave or pay and that CIS set complainant's
work hours and directly supervised his work on a daily basis. The agency
also stated that complainant's social security and all other insurance
and taxes were handled by CIS. The agency asserted that it does not
provide complainant with a performance appraisal and that complainant was
hired by CIS and placed by CIS at the Ronald Reagan Building pursuant
to the contract between CIS and the agency. The agency also stated
that it although it refused to certify complainant's suitability for
performance, the authority to terminate complainant's employment resided
with CIS, and complainant remained employed by CIS after he was denied
agency certification. We observe that complainant has not submitted
sufficient argument or evidence to refute the agency's position that
he was an employee of CIS rather than the agency. Based on the record,
we find that complainant was not an agency employee.
Accordingly, the agency's decision dismissing the complaint on the
grounds of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1)
was proper and 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
September 9, 2003
__________________
Date