0120170287
02-28-2017
Melissa M.,1 Complainant, v. David J. Skorton, Secretary, Smithsonian Institution, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melissa M.,1
Complainant,
v.
David J. Skorton,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120170287
Agency No. OEEMA 16-10-042916
DECISION
On October 20, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 20, 2016, dismissing her complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, pursuant to a direct purchase order contract with the Agency's Office of Policy and Analysis (OP&A), Complainant served as an Interceptor at its various museums and the zoo in the Washington, DC metropolitan area. In this position, she surveyed visitors at the Agency's various and counted visitor flow. She used an Agency iPad to perform her work.
On April 28, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on her disabilities and in reprisal for requesting reasonable accommodation. She alleged that this took place from July 2015 to January 2016, and ongoing and included, but was not limited to, the following examples:
1. On July 25, 2015, the Agency Project Associate, OP&A (S1) accused her of not returning tethers (cables that secure Agency iPads while in use) and did not notify her when they were located.
2. On October 12, 2015, after S1 instructed her to call her if Interceptor 2 did not show that day and she needed S1's help with counting, S1 patronized her by checking in person to see if Interceptor 2 arrived even though Complainant did not call. While Interceptor 2 did not arrive, Complainant did not need him because visitor volume was low. S1 talked down to her by repeatedly asking her in different ways why she did not call and raising her voice.
3. On January 9, 2016, S1 incorrectly accused her of being responsible for an iPad that went missing when S1 apparently left it in the back seat of Complainant's car.
4. Starting on January 12, 2016, she was denied the opportunity to work and ceased being assigned shifts.
5. On January 14, 2016, the Agency Acting Director, OP&A, denied her request for reasonable accommodation. After injuring her ankle while working on January 9, 2016, on January 13, 2016, Complainant requested as reasonable accommodations that when working she be provided a chair or bench where she could rest periodically, and that she not perform the duty of transporting equipment (such as iPads and tethers) to and from OP&A.
6. The Agency failed to report her ankle injury to its workers' compensation insurance carrier.2
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was an independent contractor, not its employee. While the Agency conceded that it had a right to control when and where Complainant worked, it found the manner in which she worked with visitors was somewhat self-directed and there was no supervisor. The Agency found that it did not have the right to assign Complainant additional projects outside her scope of work and duration of her contracts, and the contracts explicitly indicated that the parties understood that Complainant was an independent contractor. The Agency found that surveying the visiting public is not part of its regular mission. It added that it provided Complainant no benefits and did not withhold her taxes.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
The Commission applies the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). See also Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016).
Whether a worker is an independent contractor or an employee covered by anti-discrimination statutes depends on if the control or right to control the means and manner of the worker's work rests with the Agency or the worker. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues, Question 1 (Dec. 3, 1997) (available at www.eeoc.gov.) (hereinafter "Enforcement Guidance").
Making this determination is fact-specific and requires consideration of all aspects of the worker's relationship with the Agency. 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.
See Ma. 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, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. 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).
An agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance, at Question 2(b) after Example 3.
A March 27, 2015 purchase order contract with Complainant indicates that the Agency contracted for her services by March 10, 2015, at a rate of $18 hourly. An Agency position description describes the job of Interceptor as a part-time opportunity, and reads that applicants must be willing to work on weekends. Interceptors would periodically advise the Agency when they were available, and based on this and other factors the Agency created work schedules for them. The record contains invoices from Complainant for services she performed from June 10, 2015 to December 19, 2015. While she worked part-time and sometimes intermittently, overall she frequently served the Agency.
Factors 1 - 9 and 11 Indicate that Complainant is an Employee of the Agency
The Agency conceded that it has the right to control when and where Complainant worked, and this is supported by the record. Further, the Agency instructed Interceptors how to conduct and facilitate surveys at various locations - including which visitors not to solicit for surveys, where to intercept them for surveys, what to do with seating furniture, how to secure iPads, where to place "Survey in Progress" signs, expected travel from the OP&A office to get equipment to the survey location, and expected set up time. In a May 20, 2015, email, the Agency notified Interceptors that they were required to conform to a specified dress code - color of clothing bottom and top, no shorts, and no tank tops, and that more than three unexplained arrivals five minutes late was cause for dismissal. Interceptors were required to submit their invoices at specified intervals using an Agency template. The Agency provided the locations and equipment Complainant used to perform her duties, and all assignments were made directly by the Agency.
Further evidence of direct supervision by the Agency includes a January 12, 2016 memorandum from the Agency Acting Director of OP&A to Complainant about problems with her performance on January 9, 2016 - arriving late, arriving to the survey site with one iPad missing, and not using a start code on an iPad (control factors 1, 3, 4, 6, 7).
The skill required to conduct and facilitate surveys with visitors was low (control factor 2). A purchase order contract shows Complainant was eligible to start work by March 2015, and the record shows she continued to serve the Agency to January 2016, a significant duration (control factor 5). The Agency directly paid Complainant based on the hours she worked, not the work she performed (control factor 8). There is no indication in the record that Complainant had the right to hire and pay assistants (control factor 9). The Agency is in the business of government (control factor 11). The Agency had the right to discharge Complainant and otherwise stop using her services.
Factors 10 and 12 - 13 Indicate that Complainant is an Independent Contractor
Surveying visitors in not the mission of the Agency (control factor 10). The Agency provided Complainant no benefits and did not withhold any of her taxes (control factors 12, 13).
Based on the legal standards and criteria set forth herein, we find that the Agency's control or right to control Complainant's position overwhelmingly shows that she was a de facto employee of the Agency, not an independent contractor, for purposes of enforcement of anti-discrimination statutes and 29 C.F.R. Part 1614.
We find, however, that issue 6, as identified herein, fails to state a claim. Claims concerning submission of paperwork to the Office of Workers' Compensation Programs (OWCP) generally constitute a collateral attack on the OWCP process, and fail to state a claim in the EEO process. OWCP has exclusive jurisdiction over the administration, interpretation, and enforcement of the Federal Employees Compensation Act. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (August 15, 2002).
The FAD is MODIFIED. The Agency shall comply with the Order below.
ORDER
On remand, the Agency shall work with Complainant clarify the issues we were unable to discern, using footnote 2 as its guide. Thereafter, the Agency shall process the clarified issues, along with issues 1 - 5 identified herein (but not issue 6 or a claim about the OWCP process), in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received these claims within thirty (30) calendar days of the date this decision was issued. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
February 28, 2017
__________________
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 This definition of Complainant's complaint more closely reflects her claims than the one in the Agency's FAD. In her complaint, Complainant largely incorporated her EEO intake form dated February 8, 2016. In places, the record copy of this form is illegible because the scan is too light. As a result, we were unable to discern some claims although it appear they reference specific events or emails. Further, in the intake form Complainant indicated that by September 2015, the Agency started failing to reasonably accommodate her on her schedule and assignments, and S1's harassment of her intensified. But it is unclear whether Complainant alleged this as background or an active claim since she wrote this in response to the intake question on why she believed the discrimination occurred.
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.
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