0120170140
11-29-2016
Kristofer D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristofer D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120170140
Agency No. 2004-0688-2016102689
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 18, 2016, 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 was a student in a work study program in an Agency Equal Employment Opportunity (EEO) office performing intake for individuals who came there to file EEO claims. The EEO office was located in the Washington, DC Veterans Affairs Medical Center (VAMC).
Pursuant to the copy of the student work study agreement in the record which is not executed by Complainant, he was to perform 546 hours of service from December 11, 2015 and ending no later than May 11, 2016. According to Complainant, he actually started in early February 2016. Under the agreement, Complainant's performance was subject to Agency supervision. The Agency agreed to pay a total work study allowance of $5,733, with an advance to Complainant of a certain amount subject to repayment by him to the extent he failed to perform equivalent hours of service, unless waived by the Agency. The hourly rate of the allowance was $10.50. Consistent with 38 U.S.C. � 3845(d), the agreement provided that Complainant would not be considered an employee of the United States for purposes of laws administered by the Office of Personnel Management (OPM), but would be for purposes of workers compensation. To be eligible for the work study program, a student must be enrolled in a program of rehabilitation, education, or training under laws administered by Veterans Affairs at a rate equal to at least three-quarters of that required of a full-time student, albeit this was subject to waiver by the Agency.
On June 1, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII when on February 19, 2016, after he was in the above position for two weeks, the EEO Manager (who Complainant refers to as the Chief of the EEO office) terminated him. In his report, the EEO counselor wrote that Complainant and the EEO Manager relayed that the grounds for the termination were Complainant sleeping on the job, breaching medical confidentiality, and engaging in sexual harassment (all of which Complainant strongly denied).
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was the beneficiary of an Agency educational program, not an Agency employee. Citing decisions issued by the Commission and this office (Office of Federal Operations (OFO)), the Agency found that trainees in its work study programs were not employees. The Agency also found that the common law test in Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June 1, 1998) for determining whether an individual is an agency employee for purposes of laws enforced by the EEOC applied, albeit it did not actually apply the test's factors.
On appeal, Complainant, represented by counsel, submits an affidavit and brief. Complainant states as follows. He is a veteran who served in the U.S. armed forces during 1996 - 1997, where he was shot in the right leg and broke his right foot, resulting in a disability. He worked for the Agency from 1997 to 2002. In 2000, he worked there as an Administrative Assistant in an emergency room. In connection with this Agency job Complainant filed a race based administrative EEO complaint in 2002 "implicat[ing]" Agency Official 1 and others. The EEO complaint settled in 2008. Starting in 2010, Complainant studied Business Technology at a university for about three years. In 2014, he participated in a work study program under the Veterans Readjustment Act. He was initially placed in OPM, and then in 2016 with an Agency EEO office. His job performance at the Agency was initially praised by the Agency, and days after he saw interactions where the EEO Manager talked with Agency Official 1 he was terminated. Complainant stated it was evident that Agency Official 1 told the EEO Manager to terminate him from his work study position in retaliation for the above EEO activity.
On appeal, Complainant argues that in dismissing his complaint, the Agency wrongly relied on reasoning that his work study position did not qualify him as an employee. Citing case law, Complainant argues that as someone who was retaliated against in 2016 by the Agency for filing an EEO complaint against it in connection with his employment there from 1997 - 2002, his complaint states a claim. He argues that former employees are covered by Title VII.
In support of his argument, Complainant cites the following cases where it was found that a former employee stated a claim: Pantchenko v. C.B. Dolge Co., Inc., 581 F. 2d 1052, 1055 (1978)(former employer refused to provide post-employment reference letters - reprisal claim); Sternberg v. Department of Defense Dependents Schools, EEOC Request No. 05890976 (Jan. 8, 1990)(about nine months after the complainant was terminated, the agency sent a U.S. Armed Forces hotel his removal letter which detailed the charges against him after the hotel allegedly tried to verify the complainant's status since he allegedly was using the hotel under the pretense that he was an agency employee - reprisal claim); Kaiser v. Office of Personnel Management, EEOC Request No. 05950289 (Nov. 7, 1996)(the agency, who was the complainant's former employer, was also responsible for processing disability retirement applications. About seven months after the complainant retired pursuant to a settlement agreement, the agency temporarily suspended processing his disability retirement application because he filed an EEO complaint alleging that he was discriminatorily coerced into entering into the settlement agreement); (Robinson v. Shell Oil Co., 519 U.S. 337, 339, 345 - 346 (1997)(after the employee was fired, former employer sent a negative reference to a prospective employer - reprisal claim); Simpkins v. United States Postal Service, EEOC Appeal No. 01985154 (Dec. 3, 1999)(former employee alleged that that even though he paid his agency debt, it continued to bill him and reported him to credit bureaus - reprisal claim). Complainant also cited Barbardo v. General Services Administration, EEOC Appeal No. 01A34792 (May 6, 2004)(about 2 years and 10 months after retiring, Complainant filed a formal complaint with the Agency alleging that he was constructively discharged based on his sex, age, and reprisal (claim 1). About two months later, he amended his complaint, alleging that earlier in the month the management official who constructively discharged him subjected him to an unprovoked verbal attack at a retail establishment, to include vulgar language, racial slurs, and threats of physical violence (claim 2). OFO affirmed the dismissal of claim 1 for untimeliness. On claim 2, it found that as a former employee the complainant had standing to file an EEO complaint, albeit this claim failed to state a claim because he was not aggrieved).
ANALYSIS AND FINDINGS
In the EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, at 29 - 30 (Aug. 25, 2016), the Commission wrote that anti-retaliation protections for EEO activity extend even to those who are retaliated against after their employment relationship ends. Examples the Commission gave were when a former employer retaliates by giving an unjustified, untruthful negative job reference, by refusing to provide a job reference, or by informing an individual's prospective employer about the individual's prior EEO complaint.
Here, Complainant formerly worked for the Agency from 1997 to 2002, including as an Administrative Assistant in an emergency room starting in 2000. In connection with this, Complainant filed a race based administrative EEO complaint in 2002 implicating Agency Official 1 and others. The complaint settled in 2008. Complainant alleges that Agency Official 1 told the EEO Manager to terminate him from his work study position in retaliation for the above EEO activity. Applying the case law and guidance cited above, we find that Complainant's complaint states a claim.
Determining if Complainant also has the status of a former employee from his participation in the work study program is still relevant because employee status could potentially impact remedies the Commission could order - albeit we are not ruling on this now - such as reinstatement if discrimination were found.
In support of its finding that the complainant was not an employee in the work study program, the Agency cited Meador v. Department of Veterans Affairs, EEOC Request No. 05920836 (April 1, 1993)(the Complainant alleged discrimination based on his race when he was placed in the file unit instead of being trained as a clerk/typist pursuant to the agency's Unpaid Work Experience Program. He was beneficiary of an agency training and rehabilitation program designed to provide veterans with service-connected disabilities assistance to enable them to obtain and maintain suitable employment. The Commission found that the complainant was not a volunteer and was a beneficiary of the agency, not an employee;2 West v. Department of Veterans Affairs, EEOC Appeal No. 01A45819 (Feb. 23, 2005)(OFO followed Meador); Aquiningoc v. Department of Veterans Affairs, EEOC Appeal No. 0120120831 (May 30, 2012)(OFO followed Meador and West).
In Lonergan v. Department of Veterans Affairs, EEOC Request No. 05970406 (July 10, 2000) the Commission distinguished Meador. Here, the complainant was placed by his vocational rehabilitation specialist in an agency training program which was considered unpaid work experience, albeit he received a monthly stipend through an agency rehabilitation program. The complainant alleged that he was discriminated against based on his disability and reprisal when he was harassed, suspended, and terminated from the rehabilitation program, and he was not converted to a full-time position. In finding that Complainant was a common law employee of the Agency, the Commission distinguished Meador, which it characterized as holding that an individual who was an unpaid trainee in one the agency's rehabilitation programs was not an employee for purposes of the Commission's jurisdictional authority. The Commission found that there was more information in the record on the complainant's circumstances than in Meador indicative of an employer/employee relationship, and hence the common law agency test for employment recognized by the Supreme court and used in Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 and 01962389 (May 29, 1988) applied. In finding that the complainant was an employee of the agency, the Commission found it relevant that he worked for the agency for upwards of 14 months with designated hours at an agency facility, his work fell within the parameters of the agency's regular business, the agency assigned him work and controlled the manner in which it was accomplished, and he received a stipend.
Like in Lonergan, there are sufficient circumstances in the record indicative of an employer/employee relationship that the common law test referenced in Ma applies - Complainant served on Agency premises, and the student work study agreement in the record (which is not signed by Complainant) indicates his performance was subject to Agency supervision and he received an hourly allowance at a rate of $10.50. Also, given the nature of the work - intake in an EEO office, it is likely his work was assigned to him by Agency officials. But there is insufficient information in the record at this point to make a determination on whether Complainant was a common law employee of the Agency - the parties did not develop the record on the factors of the common law test, and the copy of the work study agreement in the record is not signed by Complainant. On remand, the Agency shall develop the record so a determination can be made on whether Complainant was a common law employee of the Agency as a result of his participation in the work study program. In so doing, the Agency shall use the language below as a guide.
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 the manner and means by which the work is accomplished.3
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in 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.
Id. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties.
The FAD is REVERSED. The Agency shall comply with the order below.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. In addition to this the Agency shall also investigate whether Complainant was a common law employee of the Agency because of his participation in the work study program.4 The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
GHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The Commission also found that while the United States Supreme Court held in Traynor v. Turnage, 485 U.S. 535 (1988), that a Veterans Affairs benefit scheme or regulation is subject to judicial challenge under an overarching statute such as the Rehabilitation Act, it noted that 38 U.S.C. 211(a)(now 511) insulated from review decisions made in interpreting or applying a particular provision of a statute (providing benefits to veterans) administered by Veterans Affairs. Traynor, 485 U.S. at 542-544. Accordingly, the Commission held that the decision made by Veterans Affairs with respect to where to place the beneficiary in the rehabilitation program it administers under the Veterans Administration statutory authority was not reviewable by the Commission.
3 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). This factor is especially significant in termination cases.
4 Since in any event Complainant's complaint states a claim, the Agency should not issue a separate FAD deciding if he was a common law employee of the Agency because of his participation in the work study program. Rather, this matter is relevant because common law employee status could potentially impact remedies the Commission could order - albeit we are not ruling on this now - such as reinstatement if to the work study program if discrimination were found.
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