0120073169
09-19-2007
Richard L. Williams, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Richard L. Williams,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073169
Agency No. 0768636001
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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of sex (male) and disability
(back injury) when, on November 10, 2006, complainant was given the
choice of taking a reduction in pay or be terminated. In addition,
complainant indicated that he was forced to work onsite, taking away
his reasonable accommodation of telecommuting 100% of the time.
The agency dismissed the complaint stating that complainant was not an
employee of the agency but a contractor. The agency's final decision
summarily indicated that complainant was an employee of Dynamics Research
Corporation (DRC), a contractor with the agency. The decision noted
that it determined that complainant did not meet the definition of an
"employee." The agency's decision noted that complainant's place of
work was his home, the equipment was not furnished by the agency, and
his salary, benefits, leave and taxes were paid for by DRC, As such,
the agency dismissed the complaint. This appeal followed.
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. 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.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may
exist where both the agency and the "staffing firm" 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," such as Lionel Henderson &
Co., Inc., and the agency each maintain over complainant's work. Thus,
a federal agency will qualify as a joint employer of an individual if
it has the requisite means and manner of control over the individual's
work under the Ma criteria, whether or not the individual is on the
federal payroll. See Guidance. The Guidance lists some additional
factors to help determine if an individual is an employee, i.e., (a)
the firm has a right to assign additional projects to the worker, (b)
the firm or the worker sets the hours of work, and (c) the worker has
no role in hiring and paying assistants.
Upon review of the record, we find that the record has not been
developed enough to make a determination of whether complainant was an
"employee" of the agency for purposes of Title VII and the Rehabilitation.
The record only contained a copy of the EEO Counslor's Report, the EEO
Check List, the Formal Complaint, and other such documents. There were
no documents provided that would have allowed the Commission to apply the
factors listed above to the case at hand. Thus, the agency has failed to
substantiate the bases for its final decision. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the Commission VACATES the agency's final decision dismissing
the complaint at hand and REMANDS the matter for further processing as
ORDERED below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 19, 2007
__________________
Date
2
0120073169
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120073169