Kasmin El, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01a24915 (E.E.O.C. Oct. 20, 2003)

01a24915

10-20-2003

Kasmin El, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Kasmin El v. Defense Logistics Agency

01A24915

10/20/03

.

Kasmin El,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 01A24915

Agency No. GA-02-022

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 22, 2002, 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.

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged

that he was subjected to discrimination on the bases of religion (Muslim)

and disability (partial paralysis, renal failure and irregular heartbeat)

when he was subjected to harassment.

On August 22, 2002, the agency dismissed the complaint because it

determined complainant was not an employee of the agency, and therefore,

the complaint failed to state a claim. Instead, the agency concluded

that complainant was employed by the agency's contractor, the Association

of Retarded Citizens ("ARC").

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.

After a careful review of the record, including complainant's contentions

on appeal, we find that complainant was not an employee of the agency.

The Statement of Work for complainant's position states that, "the

selection, assignment, reassignment, transfer, supervision, management,

and control of contractor employees in performance of this Statement of

Work (SOW) will be the responsibility and prerogative of the Contractor."

Furthermore, the contractor was to provide the complainant with basic

dispatcher training. Although the shift commander, who was the alleged

discriminating official, reviewed complainant's work performance at

the end of each day, any performance-related difficulties were to be

brought to the contractor's attention through the Contracting Officer

Representative. Complainant was not provided any annual leave or

retirement benefits by the agency, nor was his social security paid by

the agency. Although complainant states that he was terminated by the

agency, he failed to provide any documentary or testimonial evidence

which would establish he was terminated by the agency, rather than in

joint consultation between the ARC and the agency. Indeed, complainant

failed to provide his letter of termination, to support this contention.

Accordingly, we AFFIRM the agency's final decision.

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

10/20/03

Date