01a02760
06-14-2002
Regina M. Hovey, Complainant, v. Anthony Principi, Secretary, Department of Veterans Affairs, Agency.
Regina M. Hovey v. Department of Veterans Affairs
01A02760
06-14-02
.
Regina M. Hovey,
Complainant,
v.
Anthony Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02760
Agency No. 200P2023
DECISION
Regina M. Hovey (hereinafter referred to as complainant) filed a timely
appeal from the January 26, 2000, final decision of the Department of
Veterans Affairs (hereinafter referred to as the agency) dismissing her
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Specifically, the agency found that complainant was not an
employee or applicant for employment and lacked standing to file an
EEO complaint. The record contains a contract between the agency and
the University of California at Irvine (UCI) under which UCI provided
certain scarce medical specialist services to the agency's Long Beach
(California) Medical Center.<1> In September 1999, complainant was
assigned by UCI to the agency's urology service.
To determine whether a complainant is an employee or applicant for
employment under our regulations, the Commission applies the test of
agency found in the common law. See Ma v. Department of Health and
Human Services, EEOC Appeal No. 01962390 (June 1, 1998). This standard
examines the nature of the relationship between a complainant and the
agency according to such factors as, inter alia, the right to control
the manner and means by which the product is produced, the duration
of the relationship, the role in hiring and payment, the provision of
employee benefits, and the tax treatment of workers. Id. After review
of the record herein, we find that the agency properly determined
that complainant was not an employee or applicant for employment and,
therefore, lacked standing to file the instant complaint.
CONCLUSION
Accordingly, the agency's decision was proper and 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
___06-14-02_______________
Date
1The record indicates that the contract under which complainant
was assigned to the agency's facility operated, at this time, on a
month-to-month basis at the option of the agency.