01A32438_r
08-19-2003
Phillip D. St. James, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Phillip D. St. James v. Department of the Army
01A32438
August 19, 2003
.
Phillip D. St. James,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32438
Agency No. ARHAWAII02JUL0010
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 10, 2003, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race, religion, age,
and reprisal for prior EEO activity when:
Complainant was terminated on June 28, 2002.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
after determining that complainant was neither an employee nor an
applicant for employment with the agency. The agency found that
complainant was employed by SMF Systems Technology Corporation (SMF),
under a contract with the U.S. General Services Administration (GSA).
The record reveals that complainant worked as a Technical Writer during
the relevant time period at the 516th Brigade, Theater Network Operations
Security Center (TNOSC) at Fort Shafter, Hawaii. In its final decision,
the agency dismissed the complaint for failure to state a claim, finding
that complainant did not meet the common law of agency test necessary
to satisfy requirements for employee standing.
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 Ma, EEOC Appeal No. 01962390.
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. In a letter dated November 14, 2001, complainant
accepted the terms offered by SMF for employment as a Technical Writer
for TNOSC beginning on November 26, 2001. This letter described
complainant's salary, including a signing bonus, SMF provisions for
medical and health benefits, and complainant's relocation to Hawaii.
We determine that SMF retained ultimate disciplinary and supervisory
authority over complainant. In sum, complainant has failed to rebut the
evidence showing that complainant was hired, terminated, and paid by SMF.
Under such circumstances, the Commission determines that complainant was
not an agency employee under the purview of our regulations. Therefore,
the complaint was properly dismissed for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1).
For the reasons set forth herein, the Commission AFFIRMS the decision
of the agency dismissing the complaint.
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
August 19, 2003
__________________
Date