01A31607_r
09-08-2003
Naomi Walton, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Naomi Walton v. Department of Justice
01A31607
September 8, 2003
.
Naomi Walton,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A31607
Agency No. M03-0011
DECISION
Complainant appealed to this Commission from the agency's December 2,
2003 dismissal of her employment discrimination complaint. In her
complaint, complainant alleged discrimination on the bases of race
(African-American), sex (female), disability (hearing loss), and age when
on August 7, 2002, complainant was terminated from her Court Security
Officer (CSO) position.
In its dismissal, the agency found that complainant failed to state
a claim of employment discrimination, because he was not an employee
or applicant. Specifically, the agency found that complainant was
a contractor of AKAL Security, Inc., not an employee of the agency.
The agency noted that it only disqualified complainant from serving as a
CSO under its contract with AKAL; the contractor AKAL unilaterally took
the ultimate action to terminate complainant from employment.
The agency may dismiss complaints that fail to state a claim.
See 29 C.F.R. � 1614.107(a)(1). Complaints filed by someone other
than an employee or applicant for employment do not state a claim.
Pettis v. Department of the Navy, EEOC Appeal No. 01964038 (Mar. 2,
1999). Contractors are not considered employees or applicants of the
agency; the Commission applies the common law of agency test to determine
whether complainants are �employees� entitled to protection under Federal
Sector Regulations. See Zheng v. Department of Health and Human Services,
EEOC Appeal No. 01962389 (June 1, 1998); Ma v. Department of Health and
Human Services, EEOC Appeal No. 01962390 (June 1, 1998).
The Commission notes that it has reviewed other claims concerning whether
CSO's working for AKAL were employees or independent contractors.
In these complaints, the Commission analyzed identical contract
provisions to those governing complainant's relationship with the
agency. In these cases, the Commission found that the complainants were
independent contractors, not employees of the agency. See Williams
v. Department of Justice, EEOC Appeal No. 01A30630 (Mar. 19, 2003);
Voeltz v. Department of Justice, EEOC Appeal No. 01A30346 (Mar. 5, 2003);
Lamb v. Department of Justice, EEOC Appeal No. 01A30378 (May 22, 2003);
Chiabaudo v. Department of Justice, EEOC Appeal No. 01A30278 (Feb. 11,
2003). Complainant has presented no arguments or evidence to justify
a deviation from Commission precedent.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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 (S0900)
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. 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 (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
September 8, 2003
__________________
Date