0120083201
09-19-2008
Maria D. Gamon, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Maria D. Gamon,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120083201
Agency No. HS-07-ICE-002223
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 11, 2008, dismissing her formal 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a formal complaint dated November 1, 2007, complainant alleged
that she was subjected to discrimination on the basis of sex (female)
and sexual orientation (unspecified)1 when:
1. On April 5, 2007, she was removed from her position as a contract
security guard.
2. From approximately April 2007 to the present, she was prevented
from gaining employment elsewhere due to an unnecessarily long period
of time that the Office of Inspector General (OIG) investigation had
been pending against her.
3. From approximately June 2007 to the present, she was not
permitted to return to work despite the fact that Immigration and Customs
Enforcement (ICE) received preliminary verbal verification from OIG that
she had been cleared of wrongdoing.
On June 11, 2008, the agency issued a final decision. The agency
dismissed complainant's claim for failure to state a claim, finding
that prior to April 5, 2007, she was an independent contractor for ICE.
The agency indicated that complainant was employed by DECO-AKAL and
was under the direct supervision of the DECO-AKAL Contract Supervisor
(CS). The agency showed that DECO-AKAL controlled the manner and
means by which her work was accomplished. The CS assigned posts,
monitored performance, and handled any problems with contract guards.
Moreover, the agency maintained that DEKO-AKAL was responsible for
contract guards' training, discipline, and payment of yearly salary.
In addition, the agency indicated that there were no federal supervisors
overseeing the contract guards and that it was DECO-AKAL, not ICE that
removed complainant from the contract. The agency maintained that it did
not have the authority to discharge or otherwise terminate complainant's
employment as a contract employee. Given all of these circumstances,
the agency maintained that there was no employer-employee relationship
between the agency and complainant. Therefore, the agency found that
complainant lacked standing to bring a discrimination case.
On appeal, complainant contends that the federal agents had her removed
pending allegations which later proved to have never existed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. An
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated
against by that agency because of race, color, religion, sex, national
origin, age, or disabling condition. 29 C.F.R. �� 1614.103, 106(a). The
Commission's federal sector case precedent has long defined an "aggrieved
employee" as one who suffers a present harm or loss with respect to
a term, condition, or privilege of employment for which there is a
remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Here, the agency argues that complainant was not an
employee but an independent contractor.
The Commission has applied the common law 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 looks 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 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. 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 Ma.
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 DECO-AKAL. Moreover, other than complainant's contentions that the
federal agents were aware of her removal and had received an email which
indicated that she and others under investigation were not allowed to
enter the facility, she has not provided any information which suggests
that she was trained by agency employees, that agency employees signed
timesheets, or verified the actual hours worked. Further, complainant's
salary was also paid by DECO-AKAL and it was DECO-AKAL who removed
complainant. When weighing all the factors together, we find that the
agency showed that DECO-AKAL maintained responsibility over hiring,
training, paying, and terminating their employees. Therefore, complainant
was not an employee of the agency and the matter was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Accordingly, the agency's decision dismissing the instant complaint is
AFFIRMED.
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
09-19-08
__________________
Date
1 The basis of sexual orientation is not covered by the statutes that
the EEOC enforces.
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0120083201
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083201