01A34263_r
03-12-2004
Joseph P. Paterna, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Joseph P. Paterna v. Department of Justice
01A34263
March 12, 2004
.
Joseph P. Paterna,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A34263
Agency No. M03-0034
DECISION
Complainant appeals to the Commission from the agency's May 29, 2003
decision dismissing his complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). Complainant alleges discrimination on
the bases of age and disability when he was terminated from his position
of Court Security Officer (CSO) on October 4, 2002. Specifically, the
agency dismissed complainant's complaint finding that he lacks standing
to bring the claim against the agency because he is an independent
contractor and not an employee.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees. 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. 218, 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 occupations,
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 our
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. Id.
During the time in question, complainant worked as a CSO with MVM,
Inc., a contractor of the United States Marshals Service (USMS).
The record contains a contract between MVM, Inc., and the USMS.
The contract indicates that MVM, Inc., will be responsible for "all
management, supervision, manpower, material, supplies, and equipment
. . . and plan, schedule, coordinate, and assure effective performance
of security services at the place of performance in accordance with the
terms, conditions and statement of work." After a review of the record,
we find that complainant is not an employee of the agency. Therefore,
he lacks standing to bring the claim, thus fails to state a claim.
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 12, 2004
__________________
Date