0120152015
06-27-2017
Michal G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michal G.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152015
Hearing No. 520-2014-00186X
Agency No. 200H-0620-2013102096
DECISION
On May 4, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency order dated April 8, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a candidate to serve the Agency as Medical Officer of the Day (Physician) at the Veterans Affairs (VA) Hudson Valley Health Care System in Montrose and/or Castle Point, New York.
On April 7, 2013, Complainant filed a formal complaint alleging, as clarified in a transcribed January 30, 2015 preliminary hearing, that the Agency discriminated against him based on his age (59) and reprisal for prior protected EEO activity under Title VII when on or about January 28, 2013, it notified him that he was not selected for the position of Medical Officer of the Day.
In May or June 2011, Complainant applied for the advertised job of Physician (Hospitalist & Internist), a full-time not to exceed a year and a day position in the VA Hudson Valley Health Care System.
While Complainant was not selected for this advertised job, based on his application therefore, the Agency decided to consider him for the position of Medical Officer of the Day. At some point, Complainant was interviewed by the Hospital Care Line Manager, who later explained that the Hudson Valley Health Care System needed Medical Officers of the Day, and he felt Complainant was a good fit because he wanted to work as a nocturnist. Medical Officers of the Day are fully licensed practitioners who provide medical coverage during non-administrative hours, e.g., nights and weekends. They are "Medical Staff." Complainant's Memorandum of Law in Opposition to the Summary Dismissal and Summary Judgment of Agency, Ex. 7 "Bylaws, Rules of Conduct of the Medical Staff, Department of Veterans Affairs, VA Hudson Valley Health Care System," at 23 - 24 (July 2009)(hereinafter referred to as Ex. 7).
The Hudson Valley Heath Care System maintains a pool of Medical Officers of the Day, and needed more.2 Most work intermittently to supplement their incomes on weekends or nights. The Chief of Staff for the VA Hudson Valley Health Care System or her subordinate, the Hospital Care Line Manager, made the ultimate concomitant decisions not to grant Complainant credentials to practice there and deny him entry into the pool. The Chief of Staff explained that Complainant had six malpractice claims against him, one of which was still open, and one that settled for $525,000, and was under investigation by the Office of Professional Medical Conduct for suspected medical misconduct.
Medical Officers of the Day are paid an hourly fee for their work, receive no other compensation, and the Hudson Valley Health Care System does not view them as Agency employees.
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed a "Motion to Dismiss, and Alternatively, for a Decision Without a Hearing (Summary Judgment)." The AJ granted the Agency's motion. The AJ found that a Medical Officer of the Day is not a full or part-time position posted under an Agency vacancy announcement, and summarily ruled they are independent contractors, not employees within the meaning of Title VII and the ADEA. Based on this finding, the AJ granted the Agency's motion, and in its final order the Agency accepted and fully implemented the AJ's decision.
On appeal, Complainant essentially argues in relevant part that the AJ erroneously found that Medical Officers of Day are independent contractors. In opposition to the appeal, the Agency argues that its final order should be affirmed.
ANALYSIS AND FINDINGS
The matter before us is whether the AJ properly dismissed Complainant's complaint on the ground he was a candidate to be a contractor for the Agency, not an employee, i.e., 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 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.
Factors 1, 3 - 8, and 10 - 11 Indicate that Complainant was a Candidate to be an Agency Employee, as Does the Power to Terminate the Relationship
The Chief of Staff stated that Medical Officers of the Day are supervised by the Hospital Care Line Manager. Report of Investigation (ROI), Ex. B2, at 3 - 5. The Agency decides both whether to include a physician in the Medical Officer of the Day pool when to utilize him. The Agency creates individual annual proficiency reports for "Medical Staff." They are prepared by the "supervisor," subject to approval by an approving official. Ex. 7, at 21 - 22. The Agency retains authority to suspend or revoke medical staff privileges - the authority to practice/work at the VA Hudson Valley Heath Care System. In its "Motion to Dismiss and, Alternatively, for a Decision Without a Hearing (Summary Judgment)," the Agency conceded that Medical Officers of the Day work on Agency premises using equipment and perform work which is an integral part of the business of the Agency. Nothing in the record suggests that Medical Officers of the Day play any role in hiring or paying assistants. They can work on an ongoing basis. Medical Officers of the Day are paid on an hourly basis, not for example, a predetermined amount based on each patient treated.
Factors 2 and 12 Indicate that Complainant was a Candidate to Serve as an Independent Contractor
As a physician, Complainant is highly skilled. Medical Officers of the Day receive no compensation other than hourly wages or fees.
Factor 13 Does not Point in Any Direction
The record does not reflect if the Agency withholds any taxes from its payments to Medical Officers of the Day.
The Agency argued in part that because Medical Officers of the Day work intermittently, they are independent contractors. While the amount a person serves an Agency plays a role in determining Agency control, the Commission has found that a part-time intermittent worker was a common-law employee of an Agency. Melissa M. v. Smithsonian Institution, EEOC Appeal No. 0120170287 (Feb. 28, 2017)(the Complainant served the Agency on and off as an interceptor, meaning she surveyed visitors at various museums).
Based on the legal standards and criteria set forth herein, we find that the Agency's control or right to control the Medical Officer of the Day position shows Complainant was a candidate to be a de factor employee of the Agency, not an independent contractor, for purposes of enforcement of anti-discrimination statutes and 29 C.F.R. Part 1614. The Agency's final order is REVERSED.
ORDER
The Agency shall submit, on Complainant's behalf, a request for a hearing to the appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing so, and a copy of this decision. The Agency shall submit evidence of doing this to the Compliance Officer, as referenced below, with a copy to Complainant. The Agency shall complete the above actions within 30 calendar days from the date of this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (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
June 27, 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 As of January 28, 2013, the VA Hudson Valley Heath Care System had a pool of 20 Medical Officers of the Day. Report of Investigation (ROI), Ex. C2.
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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