Richard G. Nielson, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120071004 (E.E.O.C. May. 8, 2007)

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.

??

??

??

??

2

0120071004

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120071004