01A15256_r
06-05-2002
Ricardo Jones, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ricardo Jones v. Department of the Army
01A15256
June 5, 2002
.
Ricardo Jones,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A15256
Agency No. ANDMFO0107B0250
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 27, 2001, 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. , the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d)
et seq. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), color (brown),
age (44), and in reprisal for prior protected activity when:
Complainant was subjected to a hostile work environment;
The agency entered into a conspiracy with complainant's employer,
Military Professional Resources Inc. (MPRI), reserve recruiting
contractors to force complainant to resign effective August 31, 2000;
As a result of discrimination on the basis of an Equal Pay Act violation,
complainant did not receive all the pay to which he was entitled;
As a result of an Equal Pay Act violation, two women in Louisiana earned
more money than complainant.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency concluded that complainant was not an agency employee or
applicant for employment.
On appeal, complainant alleges that the agency and MPRI were his joint
employers. Complainant notes that he was placed under the direct
supervision of office manager (Person B) who had authority to review
and approve all work related matters. Complainant states that all his
work was processed by the agency and was part of the agency's normal
business work.
In response, the agency claims that complainant was exclusively employed
by MPRI, noting that complainant's supervisor was exclusively Person A,
an MPRI employee. The agency noted that complainant set his own work
schedule and received a base salary from MPRI with bonuses based upon
production also paid by MPRI. The agency stated that it did not provide
any direct supervision of complainant's recruiting efforts. The agency
stated that under its contract with MPRI, complainant was required
to furnish the results of his recruiting efforts, i.e., the names of
interested applicants, to Person B, the agency's station commander. The
agency acknowledged that Person B took this information and integrated it
into the agency's computer data base of prospective recruits. The agency
stated that complainant was hired as a specialist and independently
decided how he would engage in recruitment efforts. The agency stated
that it provided property and equipment as negotiated in its contract but
noted that complainant was not authorized to obtain property or equipment
not included in his employer's contract with the agency. According to
the agency, Person B was custodian or technical point of contact for
property and equipment which was furnished to complainant pursuant to
the contract. The agency stated that it did not: make work or special
project assignments; provide complainant pay or establish the method of
payment; manage his leave; evaluate his performance; set his hours of
work; pay Social Security, State, or Federal taxes; provide health or
retirement benefits; provide Workers' Compensation of insurance coverage;
and did not have the authority to discipline or terminate his employment.
Thus, the agency denied an employment relationship with complainant.
Review of the record shows that on September 8, 1999, complainant accepted
an offer of a full time position at the agency's Staten Island, New York
facility, as a Civilian Reserve Recruiter with MPRI, a private company.
Under contract, MPRI provided the agency with personnel to perform
reserve recruiting services.
The record contains an affidavit by Person A, an employee of MPRI,
stating that he was complainant's supervisor. According to Person A,
complainant set his own work schedule and determined the amount of effort
needed for recruiting particular potential recruits. Person A stated
that the agency did not provide any direct supervision of complainant's
recruiting. Person A noted that under the contract, complainant was
required to furnish the results of his recruiting efforts to Person B,
who took the information and integrated it into the agency's computer
data base of prospective recruits.
The record contains a statement provided by complainant dated May
18, 2000, to the EEO Office in which he states that Person A was his
supervisor. Additionally, the record contains complainant's letter of
resignation dated September 6, 2000, stating that his resignation was
given verbally to Person A on August 31, 2000. In a memorandum dated
September 28, 1999, regarding the outsourcing of recruiters, the agency
states that under the contract MPRI will hire recruiters to provide the
same services as agency recruiters. This memorandum specified that the
MPRI recruiters will be hired and supervised by the contracting firm
and not the agency.
According to the record, in January 2001, complainant filed a complaint of
discrimination against MPRI Contractors alleging constructive discharge.
Complainant alleged that MPRI denied him bonus pay and other terms,
conditions, and privileges of employment which he claims led to his
constructive discharge. The record shows that complainant entered into
negotiations with MPRI regarding his constructive discharge claim and
received a proposed settlement agreement to consider on May 11, 2001.
According to the record, complainant contacted the agency for the first
time on May 17, 2001, alleging that he was the victim of constructive
discharge because of discrimination by agency employees.
The Commission's regulations provide that an agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that the agency has discriminated against him because of race,
color, religion, sex, national origin, age, or disability. 29 C.F.R. �
1614.103. If not an "employee or applicant for employment," despite being
aggrieved, a complainant has no standing to file a complaint under the
EEOC's regulations, and the agency must dismiss the complaint. See 29
C.F.R. � 1614.107(a)(1).
In order to determine whether an individual is an employee, "the
Commission will apply the common law of agency test, considering all
of the incidents of the relationship between the [complainant] and the
agency...'' Ma and Zheng v. Department of Health and Human Services,
EEOC Appeal Nos. 01962390 and 01962389 (June 1, 1998). 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 v. Department of Health and Human Services, supra.
In Ma, the Commission further 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).
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms (December 3, 1997) (Guidance), we also recognize
that a "joint employment " relationship may exist where both the agency
and the "staffing firm," such as MPRI, may be deemed employers. Similar
to the analysis set forth above, a determination of joint employment
requires an assessment of the comparative amount and type of control the
"staffing firm" and the agency each maintained over complainant's work.
Based on the legal criteria set forth above, we find that complainant was
not an employee of the agency, either solely or jointly with MPRI, while
providing services under the MPRI contract. The record reflects that
the agency had essentially no control over any aspect of complainant's
work, providing only space and equipment. In fact, statements by both
complainant (May 18, 2000 letter to EEO Office), and MPRI (statement by
Person A, MPRI supervisor), as well as by the agency (memorandum dated
September 28, 1999) all acknowledge that complainant was employed by MPRI,
and not the agency.
Accordingly, the agency's decision to dismiss complainant's complaint
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
June 5, 2002
__________________
Date