0120064232
01-03-2007
Montaser Alsaied, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Montaser Alsaied,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120064232
Agency No. 06ICE000061
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated July 3, 2006, pertaining to 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. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he was subjected to
religious discrimination. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint. The agency, in its decision, framed the claims as follows:
(1) on December 21, 2005, complainant was sent home from, and thereafter
not allowed to return to, his position as an Armed Security Guard at a
GSA-controlled facility because he had grown a goatee (beard);
(2) on January 3, 2006, complainant's request for a religious
accommodation to wear a beard was denied; and
(3) on February 17, 2006, complainant's employment was consequently
terminated by his employer, Coastal International Security, Inc.
The agency issued a decision dismissing the complaint for failure to state
a claim. The agency reasoned that complainant was not an applicant or
employee, but rather a contractor, and did not have standing to file an
EEO complaint. According to the agency, complainant has been an employee
of the Coastal International Security, Inc (hereinafter "Contractor")
from 1999 until his termination. Citing a response to the EEO office,
the agency noted that complainant wrote that the Contractor directly
supervised him, provided his equipment, and paid his salary and benefits.
Further, the agency stated that the Contractor, not the agency, had the
ability to terminate complainant.
On appeal, complainant argues that the agency denied his request for a
religious accommodation when they prohibited him from growing a beard.
Further, complainant contends that the agency advised "my employer Costal
International Security" to remove him from the contract.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a).
The Commission must first determine whether the complainant was an agency
employee or applicant for employment within the meaning of Section
717(a) of Title VII of the Civil Rights Act of 1964, an amended, 42
U.S.C. 2000e-16(a) et. seq. The Commission has applied the common law
of agency test to determine whether an individual is an agency employee
under Title VII. 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). 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 usually is 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,
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.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may
exist where both the agency and the "staffing firm" may be deemed
employers.1 Similar to the analysis set forth above, a determination
of joint employment requires an assessment of the comparative amount
and type of control the "staffing firm, and the agency each maintain
over complainant's work. Thus, a federal agency will qualify as a joint
employer of an individual if it has the requisite means and manner of
control over the individual's work under the Ma criteria, whether or not
the individual is on the federal payroll. See Guidance, supra at 11.
Based on the instant record, the Commission is unable to determine
whether the agency exercised sufficient control over complainant's
position to qualify as the employer or joint employer of complainant.
While the record contains various documents regarding whether or not the
alleged actions were discriminatory, information addressing the factors
cited in Ma is absent. The agency made reference to some elements in its
decision (i.e. the ability to terminate, pay and benefits), however, it
did not support any of these conclusions with evidence. The agency must
substantiate the bases for its final decision. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby VACATED. The complaint is REMANDED to the
agency to supplement the record and analyze complainant's position with
the agency in light of the factors cited in Ma.
ORDER
The agency is ORDERED to conduct a supplemental investigation which shall
focus on the factors set forth in Ma v. Department of Health and Human
Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). The agency
shall place in the record evidence showing whether complainant was an
employee of the agency, including a copy of the contract between the
agency and the Contractor (i.e. Coastal International Security, Inc.).
Thereafter, the agency shall either issue a final decision dismissing
the complaint or a letter accepting the complaint for investigation.
The supplemental investigation and issue of the final decision or letter
of acceptance must be completed within thirty (30) calendar days of
the date this decision becomes final. A copy of the final decision
or letter of acceptance must be submitted to the Compliance Officer,
as referenced below.
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
January 3, 2007
______________________________
Date
1 Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers may
be hired by "staffing firms" which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
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0120064232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120064232