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