05a40572
09-14-2004
Lois J. Corwye, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Lois J. Corwye v. Department of the Army
05A40572
September 14, 2004
.
Lois J. Corwye,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A40572
Appeal No. 01A40621
Agency No. ARCESTLO3JUL0011
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of the Army (agency) timely initiated a request to
the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in Lois J. Corwye v. Department of the Army,
EEOC Appeal No. 01A40621 (March 2, 2004). EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
On September 4, 2003, complainant, working at the agency as a secretary
through �Kelly Services/FedSource,� filed a formal complaint pursuant
to Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. Therein, complainant claimed that she was
mistreated by co-workers and ultimately terminated because of race-based
discrimination. The agency dismissed the complaint on the grounds of
failure to state a claim, finding that complainant was not an employee
of the agency, and had no standing under Title VII.
In the previous decision, Commission set forth the analysis which is
applied to determine whether a complainant may be deemed an employee
of the agency, for the purpose of Title VII protection, to include the
non-exhaustive list of twelve factors under Ma v. Department of health
and Human Services, EEOC Appeal No. 01962390 (June 1, 1998). However,
the Commission determined that the record did not contain a copy of
the Kelly Services/FedSource contract, or any additional information to
describe the �means and manner� of the agency's control over complainant's
day-to-day work, which is the over-riding consideration under the Ma
analysis. The Commission vacated the agency's dismissal of the captioned
complaint, and remanded the case to the agency to conduct a supplemental
investigation. Specifically, the Commission ordered the agency to obtain
evidence addressing the factors set forth in Ma, to include a copy of
the contract between the agency and Kelly Services/FedSource.
In its request for reconsideration, the agency argues that it submitted
a timely brief in opposition to complainant's appeal to the Commission,
to include a copy of the �FedSource� contract, the �Administrative
Task Order� reflecting the services to be provided by complainant,
and �Guidelines Regarding Contract Placement� (a FedSource document),
and again attaches these same documents to the instant request.
The agency avers that the latter document specifies that FedSource
will monitor employee performance, take necessary disciplinary action,
deal with conduct issues, and make awards, and that problems with
performance, attendance, personal problems, etc. should be referred to
the �contractor.� The agency also submits evidence of the Commission's
receipt of its brief and attachments, and asks that the Commission
reconsider its previous decision and instead find that complainant does
not have standing to bring the captioned complaint.
Upon review, we find that the agency submits sufficient evidence to
demonstrate that it filed a brief with the Commission, on or about
January 14, 2004; however, this brief was not associated with the
appellate record in this case. The attachments to the agency's brief,
now submitted in conjunction with the instant request contain probative
evidence regarding the contractual terms of complainant's employment;
however, the Commission determines that the record still lacks critical
information regarding the actual, day-to-day, �means and manner� of
control that the agency had over complainant's work. Review of the many
affidavits of record reveals that they focus primarily on complainant's
inter-personal relationship with co-workers and agency managers.
There is virtually no information regarding whether contract provisions
and guidelines are being adhered to in terms of the �means and manner� of
control over complainant's work. Therefore, even with the submission of
the above referenced contract documents, we find that the record still
lacks adequate evidence to make a determination in this case.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A40621 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
The agency shall conduct a supplemental investigation and supplement the
record with evidence which shows whether complainant was an employee of
the agency focusing on the factors set forth in Ma, which shall again
include a copy of the contract between the agency and FedSource and/or
Kelly Services. Thereafter, the agency shall either issue a final
decision dismissing the complaint or a letter accepting the complaint
for investigation. The supplemental investigation and issuance of the
decision or letter of acceptance must be completed with 30 calendar days
of the date this decision becomes final.
A copy of the agency's letter accepting the complaint for investigation
or a copy of the new decision dismissing the complaint must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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.
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 14, 2004
__________________
Date