0120083259
09-26-2008
Nero Borders, Jr., Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Nero Borders, Jr.,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120083259
Agency No. ARHQOSA08FEB00514
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 12, 2008, 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. In his
complaint, complainant claimed that he was subjected to sexual harassment
and a hostile work environment on the basis of his sex (male) when:
1. From November 2007 to February 2008, the Contract Specialist subjected
complainant to unsolicited unwanted attention in the workplace.
2. The Contract Specialist continuously harassed, slandered, intimidated
and stalked complainant through e-mail communication from November 21,
2007 through February 8, 2008.
3. On or about December 3, 2007, the Contract Specialist indicated
to a coworker that she was going to "relook" the Alion Science and
Technology Service Contract for the purpose of possibly altering it to
harm complainant's job position.
4. Between September 28, 2007 and February 6, 2008, the Contract
Specialist, while in the presence of a coworker, displayed hostile
intentions and demeanor to individuals within the workplace because
she believed they were having a personal relationship with complainant.
Complainant also alleged that the Contract Specialist continued to make
disparaging remarks about individuals, to include stating that "she will
get them" for what they have done to her.
5. Between September 30, 2007 and February 6, 2008, the Contract
Specialist indicated to a coworker that she would do whatever was
necessary to either physically or professionally harm another coworker
and complainant.
6. Between September 15, 2007 and October 17, 2007, the Contract
Specialist indicated to a coworker that she would get complainant for not
responding to her repeated requests to discuss a personal relationship.
7. Between January 1, 2008 and March 11, 2008, the Contract Specialist
continued to file complaints against complainant. Specifically,
complainant alleged that she filed a complaint with her military
supervisor and the Lieutenant Colonel, stating that complainant was in
a coworker's cubicle work area with a gentleman staring at her, which
made her feel uncomfortable.
8. In March 2008, the Contract Specialist went to the Lieutenant Colonel's
office to complain that complainant's coat was in her work area and
because she did not want complainant on the job, she complained that
complainant's presence in the work area made her feel uncomfortable.
9. Between February and March 2008, the Contract Specialist stated that
other employees whom were called to testify in complainant's defense are
"rats", and that she has begun an e-mail campaign against complainant
in order to intimidate them to be silent.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds of failure to state a claim. The agency determined that
complainant was at no time an employee or applicant for employment with
the agency. According to the agency, a joint employment situation was
not created as it did not have the requisite control over the means and
manner of complainant's work. The agency also determined that complainant
failed to state an actionable claim of sexual harassment under Title VII.
The agency noted that none of the nine incidents cited by complainant
related to any specific personnel action and that complainant did not
document that the Contract Specialist's comments affected his ability
to perform his duties. The agency reasoned that complainant failed to
describe a work situation where the alleged harassment met the requirement
of being so severe or pervasive that it altered the terms and conditions
of complainant's employment.
On appeal, complainant contends that he was subjected to a continued
pattern of sexual harassment with the purpose of having him dismissed
from his position because he would not have a personal relationship with
the Contract Specialist.
In response, the agency notes that it entered into a supplies/services
contract with Alion, in which Alion agreed to provide engineering,
technical and implementation support services to assist the agency
programs and program managers to achieve their technical programmatic
objectives in accordance with the statement of work. The agency submits
a statement from the Division Manager with Alion Science and Technology.
The agency notes that the Division Manager stated that complainant was a
full-time employee with Alion and that he was salaried with full benefits,
including paid holidays, vacation time, a 401(K) program, stock options,
medical, dental and eye care benefits, and insurance. The agency further
notes that the Division Manager stated that when complainant provided
services at agency facilities, he was supervised by an Alion employee.
Further, the agency states that the Division Manager noted that when
Alion lost its contract with the agency, complainant was not terminated.
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's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed
to be "employees" under section 717 of Title VII. Specifically, the
Commission will look at the following non-exhaustive list of factors:
(1) the extent of the employer's right to control the means and manner
of the workers performance; (2) the kind of occupation, with reference
to whether the work is usually done under the direction of a supervisor
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 in 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 Zheng v. Department
of Health and Human Services, EEOC Appeal Nos. 01962389 (June 1, 1998);
Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 323-24 (1992)).
A review of the record reveals that complainant was an employee of
Alion and not the agency. Complainant was a salaried employee of Alion
and he received his benefits from Alion. During his work at the agency
workplace, complainant was supervised by an Alion employee. Complainant
also received his performance evaluations from Alion. Complainant was
not terminated when Alion lost its contract with the agency. In light of
these factors, we find that complainant was an employee of Alion rather
than the agency. Therefore, the instant complaint fails to state a
claim.
Accordingly, the agency's dismissal of this complaint in its final action
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 26, 2008
__________________
Date
2
0120083259
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083259