01a55344_r
12-16-2005
Mary G. Cropper, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Mary G. Cropper v. Department of the Navy
01A55344
December 16, 2005
.
Mary G. Cropper,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A55344
Agency No. 05-68410-01241
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 14, 2005, dismissing her formal EEO 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In her formal complaint, filed on June 30, 2005, complainant claimed that
she was subjected to ongoing harassment and a hostile work environment
on the bases of sex (female) and age (D.O.B. 12/15/59) when:
(1) on May 25, 2005, she received a letter of counseling for being
disrespectful when addressing supervisory personnel;
(2) on June 3, 2005, she was told that all personnel assigned to the H1
Clinic would return to the Osborne Clinic except her and one dentist; and
(3) on June 6, 2005, she was terminated.
The record reflects during the relevant time, complainant was a Dental
Hygienist through a corporate entity identified as DSP, Inc. (hereinafter
referred to as �DSP�), and worked at the agency's Osborne Dental Clinic
in Camp Lejeune, North Carolina.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim,
finding that complainant was not a federal employee. The agency
found that complainant was not an agency employee; and that she was
a contract employee of DSP. The agency determined that the contract
between the agency and DSP required complainant's occupational skill
level and certification requirements; and that DSP paid complainant's
hourly salary and provided her with benefits.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e-16(a)
et seq.
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. 0 1962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 218, 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 is usually 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., (citations
omitted). 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,
were not appreciably different from the common law of agency test. Id.
Under this test, the Commission finds that complainant was not an employee
with the agency. First, the record contains a document identified as
"Award/Contract," dated September 29, 2004 (Contract No. N6245-05-D-5007).
Therein, the contract states that DPS would provide the services
of Dental Hygienists for the agency's Osborne Dental Clinic in Camp
Lejeune, North Carolina and other Naval Dental Centers in surrounding
areas for the period of September 29, 2004 to September 30, 2005.
The record further reflects that DSP controlled the "means and manner"
of complainant's performance; paid complainant's salary and provided
her with benefits; and was responsible for disciplining complainant.
Furthermore, the record reflects that in accordance with "Statement of
Work," DSP was "responsible for a full range of dental hygiene products,
within the scope of this statement of work, on-site using Government
furnished facilities, supplies and equipment."
Second, the record contains a copy of a June 9, 2005 letter from the
DSP Vice President (VP) to the EEO Specialist. Therein, the VP stated
that DSP had the authority to discipline complainant. Specifically,
the VP stated that on June 6, 2005, she terminated complainant from her
position at the agency's Osborne Dental Clinic based on her misconduct.
The VP further stated that the Commanding Officer (CO) "requested that
DPS replace the services of [Complainant] with another Registered Dental
Hygienist." The VP stated that following her conversation with the CO,
she contacted complainant and requested that she "report to the Osborne
Dental Clinic and complete a time sheet, turn in her contractor badge,
pick up her personal belongings and leave the building." In support of
the DSP's position in terminating complainant, the VP submitted copies of
its contract with the agency. The provision of the contract identified as
Section XI "Failure to Perform" states "If the EMPLOYER is notified that
clinical privileges have been summarily suspended pending an investigation
into questions of clinical competency or professional ethics or conduct,
performance under this agreement may be suspended or terminated."
Third, the record contains a copy of the EEO Specialist's Memo for the
record concerning her June 9, 2005 conversation with CO. Therein, the
EEO Specialist stated that according to CO, complainant was terminated
"because of her personal behavior to her [named Supervisor]." The EEO
Specialist further stated that the CO stated that it was DSP that
terminated complainant, and not the agency.
Finally, we note that in her complaint, complainant claimed that she was
discriminated against based on her "non-military civilian employment
status" as an DSP employee contracted by the agency to provide dental
hygienist services.
For the reasons set forth herein, the Commission AFFIRMS the agency's
dismissal of the instant complaint.
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
December 16, 2005
__________________
Date