0120071004
05-08-2007
Richard G. Nielson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Richard G. Nielson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071004
Agency No. 066240700950
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 9, 2006, dismissing his complaint of unlawful
employment discrimination in violation of 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 basis of age (D.O.B. 07/04/52) when:
1. Complainant was forced out of Federal employment six years ago; and
2. On September 30, 2005, complainant's position as an Environmental
Protection Specialist with a Contract Agency was terminated and the
position was given to a younger Federal Employee.
The agency dismissed claim 1 for untimely EEO Counselor contact and
claim 2 for failure to state a claim on the grounds that complainant
was not a Federal employee. On appeal, Complainant does not address
the timeliness argument but argues that he has standing as a Federal
employee because the agency controlled the time, place, and manner of his
employment, determined his performance standards, managed all paperwork,
and provided him with equipment, a computer, a vehicle, and office space.
In addition, complainant says he was supervised by agency employees,
and his position was integral to the agency's mission.
As regards both claims, we find that complainant's EEO Counselor contact
was untimely. In his May 2, 2006 Formal Complaint, complainant alleged
that he was forced out of Federal Employment "six years ago." He also
alleges that his contract position was eliminated and he was replaced
by a Federal employee on September 30, 2005. The record shows that
complainant did not contact an EEO Counselor until March 24, 2006,
which is beyond the forty five (45) day limitation period.
Following a review of the record, we further find that complainant is
not a Federal employee for purposes of the ADEA. 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).
We must first determine whether the complainant was an agency employee
or applicant for employment within the meaning of the laws enforced
by the Commission. The Commission has applied the common law of agency
test to determine whether an individual is an agency employee. 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, 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).
Furthermore, as noted above, we find that complainant's EEO Counselor
contact was untimely. 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
May 8, 2007
__________________
Date
1 Information on filing a complaint of discrimination as a private-sector
employee is available at www.eeoc.gov or by calling 1-800-669-4000.
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0120071004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071004