01A13813_r
12-16-2002
Patricia D. Clarke, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Patricia D. Clarke v. General Services Administration
01A13813
December 16, 2002
.
Patricia D. Clarke,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A13813
Agency No. 2001-R5-5PM2C-PDC-07
DECISION
In a formal EEO complaint dated March 3, 2001, complainant claimed that
she was discriminated against on the basis of her sex (female) when she
was subjected to sexual harassment and a hostile work environment by an
agency Property Manager. Complainant claimed that the Property Manager
made comments of a sexual nature to her and asked inappropriate questions.
In its decision dated April 27, 2001, the agency dismissed the complaint
on the grounds that it failed to state a claim. The agency determined
that complainant was not an employee of the agency at the time of
the alleged discrimination. According to the agency, the contract
between the agency and Vocational Guidance Services (VGS) stated that
VGS would provide housekeeping services for the agency's facility in
Cleveland, Ohio. The agency stated that complainant worked for VGS as
a Shift Supervisor at the agency facility. The agency noted that the
contract stated that VGS must provide all management and supervision for
its employees. According to the agency, a supervisory representative
of VGS was to be on site at all times and was responsible for directing
the work to be accomplished under the contract. The agency noted that
the supervisory representative was not supervised by an agency employee,
but rather by the VGS Contract Manager. The agency stated that although
complainant worked closely with agency property management personnel, the
property management personnel had no authority to direct her in matters
related to her VGS employment contract. The agency determined that it
did not adjust complainant's rate of pay or benefits, discipline her,
or approve/disapprove her leave. According to the agency, VGS paid
complainant's salary, deducted employment and social security taxes,
provided complainant a vacation benefit, and also paid any retirement
benefits. The agency stated that it provided no benefits to complainant.
With regard to the alleged harasser, the agency stated that he was
responsible for overseeing the contract with VGS and that he lacked the
authority to supervise VGS employees.
On appeal, complainant contends that the Property Manager was permitted
to instruct complainant with regard to the performance of daily duties
and functions. Complainant maintains that the Property Manager purported
to act and speak on behalf of the agency, thereby vesting himself with
the apparent authority to instruct, discipline, and/or fire complainant.
Complainant argues that her reliance on the Property Manager's apparent
authority created an employment relationship between her and the agency.
In response, the agency asserts that the Property Manager conducted
daily custodial service inspections, but he had no responsibility for
supervising or directing any VGS employee. The agency maintains that it
did not have an individual contract with complainant; she was not on its
payroll; and it did not pay her retirement benefits. The agency states
that complainant did not request leave from agency personnel nor did the
agency maintain personnel records related to complainant's employment
history. The agency emphasizes that complainant held a supervisory
position with VGS and was accountable only to VGS management. According
to the agency, the frequent business contacts between complainant and
the Property Manager were required for purposes of contract inspection
and did not equate to an employer-employee relationship.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See 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)). 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 v. Department of Health and Human Services, 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. 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.
Upon review, the Commission finds that the agency has not provided
sufficient evidence in the record addressing whether complainant was
an �employee� of the agency under the common law of agency test.
The agency determined that VGS pays complainant's salary, deducts
employment and social security taxes, and provides her with leave and
retirement benefits. The agency further determined that complainant was
not supervised by the agency, but rather by a VGS representative. We find
that the agency's determination that complainant is not an agency employee
is not sufficiently supported in the record. The agency only submitted
a portion of the contract between VGS and itself. The agency did not
submit affidavits or pay stubs that support its position. Therefore,
the Commission is unable to determine if complainant was an employee of
the agency at the time of the alleged discrimination. Given that it is
unclear whether the agency has jurisdiction over this matter, we shall
remand the matter so that the agency can supplement the record with
evidence addressing the common law of agency test as described in Ma.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma and described in this decision. Such evidence
shall include the entire contract between VGS and the agency, appropriate
affidavits, pay stubs, and any other evidence that addresses the relevant
issue. Thereafter, the agency shall determine whether complainant was
an employee of the agency and whether the instant complaint states a
claim of discrimination under 29 C.F.R. �1614.103 or �1614.106(a).
Within 60 days of the date this decision becomes final, the agency
shall either issue a letter to complainant accepting the complaint for
investigation or issue a new decision dismissing the complaint. A copy
of the agency's letter accepting the complaint for investigation or a
copy of the new decision dismissing the complaint must be sent to the
Compliance Officer as referenced herein.
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
December 16, 2002
__________________
Date