0120064869
10-18-2007
Patricia Lucious, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Patricia Lucious,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120064869
Agency No. 200305542006102
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 30, 2006, dismissing her 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (African-American), disability (high blood pressure),
and age (D.O.B. 09/05/55) when:
1. on April 1, 2005 complainant was defamed; and
2. on the same date, agency officials told complainant's employer that
complainant was no longer wanted at the agency.
The agency dismissed claim 2 but did not address claim 1. The agency
found that complainant was not an employee of the agency for purposes
of Title VII, the Rehabilitation Act, or the ADEA. Rather, the agency
asserted that complainant was a contract worker employed by Advanced
Healthcare Services (AHS). The agency found that AHS set complainant's
work schedules and tours of duty, issued paychecks, and withheld
complainant's income and social security taxes. Complainant filed the
instant appeal, but makes no argument refuting the agency's contention
concerning her employment status. Indeed, in her appeal statement she
describes AHS as her employer. Furthermore, we note that in her Formal
Complaint, when asked whether she was an agency employee, an applicant
for employment, or a former agency employee, she stated "neither."
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, as 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.
Based on the legal standards and criteria set for herein, and in view of
the fact that complainant does not dispute the agency's contention that
she is not a Federal employee while describing AHS as her employer,
we find that the agency did not exercise sufficient control over
the complainant's position to qualify as the employer of complainant.
See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006). Accordingly, we find that the agency's dismissal was
appropriate and we AFFIRM the agency's final decision1.
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
October 18, 2007
__________________
Date
1 We note that the record shows that complainant filed a complaint with
the State of Colorado Commission of Civil Rights (CCR), alleging the
same facts as alleged herein. In a decision dated January 25, 2006,
the CCR addressed the merits of complainant's claim, and further found
that complainant was an employee of AHS.
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0120064869
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064869