Royce Fowler, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 19, 2002
01A23529_r (E.E.O.C. Sep. 19, 2002)

01A23529_r

09-19-2002

Royce Fowler, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


Royce Fowler v. Department of Justice

01A23529

September 19, 2002

.

Royce Fowler,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Appeal No. 01A23529

Agency No. M02-0022

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

In a complaint dated April 10, 2002, complainant alleged that he

was discriminated against on the bases of sex and in reprisal for

prior protected activity when he was forced to terminate his personal

services contract as an Aviation Security Officer (ASO) with the agency.

Specifically, he alleged he was subjected to a hostile work environment

and remained in an "available, but not assigned work assignments"

status for more than eight weeks following his February 22, 2002

correspondence to the Justice Prisoner and Alien Transportation System

(JPATS) Contracting Officer and a union committee concerning his working

conditions, other contract issues, and the treatment of independent

contracts in Mesa, Arizona.

On June 4, 2002, the agency dismissed the complaint for failure to state

a claim, finding that complainant was an independent contractor.

The Commission has applied the common law of agency test to determine

whether complainants are agency employees under Title VII. See Ma

v. Department of Health and Human Services, EEOC Appeal No. 0 1962390

(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503

U.S. 218, 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 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 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). The Commission in Ma also noted that prior applications of the

test established in Spirides v. Reinhardt, 613 F.2d 826 (D. C. Cir. 1979),

using many of the same elements considered under the common law test,

were not appreciably different from the common law of agency test. Id.

The record in this case contains a Special Conditions clause under

the agency and JPATS Personal Services Contract, signed and dated July

30, 2001 by complainant. This provision states in pertinent part that

complaint "is NOT an employee of the USMS, or its designee, and is NOT

entitled to pension benefits, health benefits, or other federal employee

benefits." (emphasis in the original).

After careful review, the Commission finds that complainant is not

an employee of the agency. Complainant, therefore, lacks standing to

bring a claim against the agency under 29 C.F.R. � 1614.103(c). Thus,

the Commission finds that the agency properly dismissed the complaint

for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

For the reasons set forth herein, the Commission AFFIRMS the decision

of the agency dismissing the complaint.

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

September 19, 2002

__________________

Date