Meredith G. Davis, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a51360 (E.E.O.C. Mar. 16, 2005)

01a51360

03-16-2005

Meredith G. Davis, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.


Meredith G. Davis v. Department of Homeland Security

01A51360

March 16, 2005

.

Meredith G. Davis,

Complainant,

v.

Michael Chertoff,

Secretary,

Department of Homeland Security,

(Immigration and Customs Enforcement),

Agency.

Appeal No. 01A51360

Agency No. ICE-04-WO55

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 4, 2004, dismissing his 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 his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (African-American)

and age (51). Specifically, complainant alleged that on January 7,

2004, he received a letter dated September 7, 2003, advising him of an

unfavorable pre-employment check for a contractor security clearance.

Complainant also alleged that on February 11, 2004, he became aware that

even though his appeal of an unfavorable security clearance determination

relating to his application for a Stationary Engineer position resulted in

an acceptable rating, delays in notifying him about the initial adverse

decision resulted in another individual being placed in the position

for which he had applied.

The agency dismissed the complaint for failure to state a claim, pursuant

to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency found that

the job complainant describes is a contract position, and therefore,

complainant is not an employee or applicant for employment covered by

the administrative EEO process.

The record reveals that the agency and a company called Northern

Management had a contract, and complainant applied to work as a Stationary

Engineer which was a position covered by the contract. The position

was located at a federal building in Alameda, California. The building

is considered one of the General Service Administration's �controlled

facilities.� The record also reveals that it is the policy of the

General Service Administration (GSA) to examine all contract employees

working in its controlled facilities. The examination consists of a

limited background check through the Federal Bureau of Investigation.

A background check is done at the time of initial employment and at

least once every five years thereafter. The record also reveals that

complainant's initial background check was completed, and an unfavorable

determination was assessed on September 30, 2003. The record further

reveals that on February 11, 2004, complainant was notified by the

agency, that after a second review and new information provided by

him, the agency determined that he was acceptable for employment in a

GSA controlled facility with the condition that he cannot work in any

judiciary or courthouse space.

Claimants who are neither employees nor applicants do not have standing to

pursue their claims in the federal administrative process. The Commission

applies the common law of agency test to determine whether complainant

is an �employee� under Title VII. Lonegan v. Department of Veterans

Affairs, EEOC Request No. 05970406 (July 10, 2000) (applying the test from

Community for Creative Non-Violance v. Reid, 490 U.S. 730, 751-752 (1989)

and Nationwide Mutual Insurance Co., et al. v. Darden, 503 U.S. 316,

323-324 (1992)). The common law of agency test �contains no shorthand

formula or magic phrase[,]...all of the incidents of a relationship must

be assessed and weighed with no one factor being decisive.� Ma and Zheng

v. Department of Health and Human Services, EEOC Appeal Nos. 01962390,

01962389 (May 29, 1998) (quoting Darden, 503 U.S. at 324).

After review of the record, we cannot determine whether complainant

has standing to raise a claim. We note that the agency has some

control in the selection process; however, it is not enough for us to

determine whether or not the agency retained sufficient control over

the position in question. Without a copy of the contract governing the

relationship between Northern Management and the agency, we cannot discern

complainant's status. See Vicks v. Department of the Army, EEOC Appeal

No. 01A33005 (August 22, 2003). Therefore, the agency's dismissal is

VACATED, and the complaint is REMANDED for action consistent with the

Order below.

ORDER

The agency shall:

Obtain for the record a copy of the contract governing the relationship

between Northern Management Co. Stationary Engineers and the agency.

Obtain the affidavits or statements of relevant officials concerning

the working relationship

between Stationary Engineers hired through Northern Management Co. and

the agency. In these affidavits, the agency should focus on who pays

the Northern Management Co.-hired Stationary Engineers, who provides

their benefits, who has authority to discipline them, who provides their

performance reviews, who sets their salaries, who directs and maintains

their schedules, how much access they have to agency facilities as

opposed to �regular� employees, how much input do agency officials have

into deciding which particular Northern Management Co.-hired Stationary

Engineers work at the agency, and any other information relevant to the

common law of agency test for employees.

Issue a letter of acceptance of the complaint or issue a new decision

dismissing the complaint with appropriate appeal rights within sixty (60)

calendar days of the date this decision becomes final. This decision

must be based upon and supported by the information gathered in provisions

(1) and (2) of the order.

Provide the Compliance Officer, as referenced herein, with a copy of

the acceptance letter or a copy of the new final decision.

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.

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 (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

March 16, 2005

__________________

Date