Nemat Hassan-Zadeh, Complainant,v.Colin L. Powell, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionDec 9, 2003
01A34491_r (E.E.O.C. Dec. 9, 2003)

01A34491_r

12-09-2003

Nemat Hassan-Zadeh, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.


Nemat Hassan-Zadeh v. Department of State

01A34491

December 9, 2003

.

Nemat Hassan-Zadeh,

Complainant,

v.

Colin L. Powell,

Secretary,

Department of State,

Agency.

Appeal No. 01A34491

Agency No. 02-04

Hearing No. 100-A2-8090X

DECISION

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

decision dated June 26, 2003, dismissing his complaint of unlawful

employment discrimination. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of national origin (Iranian)

and religion (Islam) when:

1. In March 2001, complainant was repeatedly badgered by a co-worker

to join a lunchtime bible study class.

2. On August 13, 2001, complainant's request for a transfer to another

office because of verbal abuse and disrespect from an agency supervisor

and others was denied.

3. On September 11, 2001, his agency supervisor commented, �They've got

to bomb all these Iraqi and Iranian Moslem people and get it over with.�

4. On September 26, 2001, complainant learned that he was being

terminated from his position due to his agency's supervisor's complaints

about his performance although his agency supervisor never counseled

him about deficiencies in his performance.

5. On March 1, 2002, after working for 3 months with the agency's State

Office of Human Resources, he was told by Federal Management Systems,

Inc. (FMS), the contracting company, that the agency did not want him to

work there anymore and his services were no longer needed. The contractor

was requested to replace him with another employee.

On June 3, 2003, an Administrative Judge (AJ) dismissed the case

pursuant 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

The AJ specifically found that complainant was not an employee of

the federal government and, therefore, he was not entitled to bring

an employment discrimination complaint against the agency through the

federal EEO process. The agency, on June 26, 2003, issued a decision

fully implementing the AJ's decision.

The record reveals that complainant was employed as an Accountant by a

private company, CASystems International, Inc. (CAS). CAS had a contract

with the agency to provide financial management support. When some of

the functions performed by CAS were transferred to another contractor,

FMS, complainant's employment was initially terminated and transferred

to the new contractor and a few months later was terminated entirely.

Before the Commission or the agency can consider whether the agency has

discriminated against complainant in violation of Title VII, it first

must determine whether complainant is an agency employee or applicant for

employment within the meaning of Section 717(a) of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e-16(a) et seq.

The Commission has applied the common law of agency test to determine

whether complainant is an agency employee under Title VII. See Ma

v. Department of Health and Human Services, EEOC Appeal No. 01962390

(June 1, 1998) (citing Nationwide Mutual Insurance Co. et al 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 is usually 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 id.

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. (citations omitted).

The Commission in Ma also noted that prior applications of the test

established in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979),

using many of the same elements considered under the common law test,

was not appreciably different from the common law of agency test. See id.

Under this test, the Commission finds that complainant was not an employee

with the agency. The record contains evidence reflecting that complainant

performed his contract duties at the agency's facility, used the agency's

supplies and equipment, and that some of his assignments were controlled

by agency officials. However, the record also reflects that the agency

did not provide complainant with leave, medical insurance, unemployment

insurance, or retirement benefits. Furthermore, the agency did not

pay social security taxes for complainant. After examining all of the

factors set forth in Ma, the Commission determines that complainant was

not an agency employee and that the complaint was properly dismissed

for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

Accordingly, the agency's final decision dismissing complainant's

complaint 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

December 9, 2003

__________________

Date