0120082033
09-05-2008
Limary Cepeda, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Limary Cepeda,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082033
Agency No. ARUSAR08JAN00086
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2008, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the basis of sex (female) and reprisal for protected EEO activity when:
The Army Family Team Building Director, engaged in the following conduct:
a. In September 2006, touched complainant's hand and made inappropriate
comments about complainant's body and said that complainant was sexy;
b. In September 2006, asked complainant for a kiss;
c. On a continuous basis, spoke to complainant about her lesbian
relationships and made inappropriate comments about complainant's
appearance;
d. Withheld information and access to equipment from complainant;
e. Attempted to damage complainant's reputation;
f. Interfered with complainant's ability to perform her job;
g. Screamed at complainant;
h. Moved complainant's office;
i. Counseled complainant regarding her "tone;"
j. Told complainant's co-workers that she could have complainant fired;
k. Attempted to confront complainant on the smallest issues to embarrass
complainant in front of her co-workers;
l. Deleted complainant's emails without reading them; and
m. Made written and verbal accusations about complainant which were
false.
The agency dismissed complainant's complaint for failure to state a
claim in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
Specifically, the agency determined that complainant was an independent
contractor1 and not an agency employee entitled to pursue her claim
through the federal EEO complaint process. EEOC Regulation 29 C.F.R. �
1614.107(a)(1) provides that an agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he has been discriminated against by the agency because of race, color,
religion, sex, national origin, age or disabling condition. See 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 theory test to determine whether
complainants are agency employees under laws enforced by the EEOC. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962389 &
01962390 (May 29, 1998)(citing Nationwide Mutual Insurance Co. v. Darden,
503 U.S. 318, 232-24 (1992)); Baker v. Department of the Army, EEOC
Appeal No. 01A45313 (March 16, 2006). 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 work 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.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. Complainant does not dispute that she was hired
by SERCO to perform services as a family advisor responsible for educating
families about the military and preparing them for mobilization. In fact,
throughout the complaint and appeal process, she identifies herself as
a SERCO employee and indicates that she was hired by SERCO to serve the
agency's 1st Mission Support Command. As the agency indicates in its
response to complainant's appeal, in performing her duties, complainant
is subject to a specific performance plan provided by the private company
SERCO, and a performance period established by SERCO. Complainant was not
required to report to an onsite supervisor and the record indicates that
complainant identifies herself as a "specialist" in performing her duties
under the contract. The record further indicates that all aspects of
complainant's pay and performance are managed by the contractor SERCO,
including reimbursable expenses which are passed along in the billing
contract. There is no direct relationship for pay or expenses between
the agency and the complainant. Complainant's leave is approved or
denied by her SERCO manager, she accumulates no retirement benefits
from the agency and the agency does not pay social security taxes.
All other benefits are managed by the private company SERCO.
Based on the record before us, we find that the complainant is not
an employee of the agency. Therefore, the Commission finds that the
matter was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 5, 2008
__________________
Date
1 The record indicates that complainant was employed by a private company
known as SERCO North America, to perform services on a contract between
SERCO and the agency.
??
??
??
??
2
0120082033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082033