0120073215
12-10-2009
Richard J. Pope, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Richard J. Pope,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073215
Agency No. 0768636002
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 29, 2007, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the
Commission finds that complainant's complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The record reveals that complainant previously worked as a Contractor
Database Administrator at the NAVSEA Logistics Center, in Yorktown,
Virginia, through Dynamics Research Corporation (DRC).1 In a complaint
dated April 10, 2007, complainant alleged that he was subjected to
discrimination on the bases of sex (male), disability (Generalized
Anxiety Disorder; Heart Attack), and age (57) when, on November 10, 2006,
he was given the option of taking a reduction in pay or being terminated.
By decision dated May 29, 2007, the agency dismissed the complaint,
finding that complainant was not an agency employee, and therefore, he
could not state a claim over which the Commission would have jurisdiction.
The decision considered several factors, including information provided
through witness interviews that he was paid an annual salary from DRC, and
his annual leave, retirement benefits and social security taxes were all
paid for by DRC. In addition, the decision noted that when complainant's
employment was terminated it was by notice of a representative from
DRC.2 Complainant makes no new arguments on appeal.
The Commission agrees that the instant matter fails to state a claim
under EEOC regulations. Before the Commission can consider whether the
agency has discriminated against complainant in violation of Title VII,
we must first determine whether complainant was an agency employee or
applicant for employment within the meaning of Section 717(a) of Title
VII of the Civil Rights Act of 1964, an amended, 42 U.S.C. 2000e-16(a)
et seq.
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee under Title VII. See Ma
v. Dep't 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. Id. 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.; see also Harris v. Department of
the Army, EEOC Appeal No. 0120092152 (September 15, 2009).
Based on the legal standards and criteria set forth herein as well as
the totality of the circumstances, we agree with the agency's finding
that complainant has not proven that he was a federal employee or job
applicant. In particular, the fact that the contracting company paid
complainant's salary and benefits, and served complainant with his
termination notice, indicates that he was an employee of the DRC.
Accordingly, we AFFIRM the agency's final decision dismissing
complainant's complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___12/10/09_______________
Date
1 The record reveals that this is a contracting company located in
Hampton, Virginia.
2 Complainant confirms that "[o]n the 10th of November I was notified
by my Project Manager (Dynamic Research Corp)... who stated that due
to budget cuts pertaining to the SLDCADA project that I would have to
accept a $30,000 year pay cut at the end of the week, or lose my job."
Formal Complaint at I-11.
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0120073215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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