01A23573_r
12-16-2002
Sonja A. Hailer, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Sonja A. Hailer v. Department of the Air Force
01A23573
December 16, 2002
.
Sonja A. Hailer,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23573
Agency No. 8B1M02003
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 21, 2002, dismissing her 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.
In her formal EEO complaint filed on March 1, 2002, complainant alleged
that she was subjected to discrimination on the bases of national origin,
sex, and in reprisal for prior EEO activity.
In its final decision, the agency determined that complainant's
complaint was comprised of six claims, that were identified in the
following fashion:
(1) from 1995 until 1998, complainant attempted to find employment at
the Saudi Arabian Riyadh Commissary;
(2) she was reprised and harassed by her two supervisors because she
was not a Filipino;
(3) she was prevented from returning to her position in Saudi Arabia
and told she could return only if she was a married male;
(4) on July 15, 2001, she became aware she was not selected for a GS-04
position for which she was fully qualified and a third party national
was selected;
(5) when her supervisor told her he wished he could hire all Filipinos;
and he refused to extend her leave without pay status; and
(6) she left her employment because her supervisor accused her of
completing a ration or pork card on a Filipino customer and was verbally
berated by her supervisor. Complainant further alleged this treatment
resulted in her being taken to a medical facility where it was determined
she needed to be sent back to the United States for medical treatment.
The agency dismissed the complaint for failure to state a claim.
The agency determined that complainant was not an employee of the Defense
Commissary Agency, but was instead an employee of the Kingdom of Saudi
Arabia. The agency acknowledged that it paid complainant's salary;
however, the agency determined that it was reimbursed by the Saudi
Arabian government. Furthermore, the agency concluded that complainant
was hired as a local hire as a result of her husband's employment contract
with a contractor in Riyadh, Saudi Arabia.
On appeal, complainant through her attorney, maintains she was an agency
employee at the time of the relevant incidents. Complainant argues
that the agency provided no documentation to support their position
that she was an employee of a foreign government. In support of her
appeal, complainant submits a Department of Defense Civilian Leave and
Earnings Statement indicating the withholding of her federal taxes and
her contribution to the federal employees retirement system. Complainant
also submits a Thrift Savings Plan Operations Branch statement wherein
she was identified as a federal employee whose agency had submitted
contributions to a Thrift Savings Plan account.
The determination of whether an individual is an employee of an agency
involves an analysis of the realities of the work relationship, See
Spirides v. Reinhart, 613 F.2d 826 (D.C. Cir. 1979). 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" withholds taxes and/or pays social security benefits; and
(12) the intention of the parties. See Esther DaVeiga v. Department of
the Air Force, EEOC Request No. 05930201 (July 13, 1993).
Given the present record, we are unable to ascertain whether complainant
is an "employee" of the agency at the time of the alleged incidents.
The only document in evidence is identified as �OCONUS Transportation
Agreement Purpose for Locally Hired Employees,� which outlines the
categories of a negotiated transportation agreement. In its final
decision, the agency stated that complainant was not a Transportation
Agreement (TA) employee or on a TA position that would have authorized
or allowed her residence to the Kingdom of Saudi Arabia. Because of
the insufficiency of the record, the agency's decision to dismiss
the complaint on the grounds of failure to state a claim is VACATED.
This complaint is hereby REMANDED to the agency for further processing
in accordance with the Order below.
ORDER
The agency is ORDERED to make a determination as to whether complainant
is considered an
"employee" under the test set forth in the instant decision. The agency
shall supplement the record with a copy of any employment contract it
has had with complainant, and all other information that is pertinent
to deciding whether complainant is considered an "employee". The agency
shall issue either a notice of processing or a new decision within thirty
(30) calendar days of the date of this decision.
A copy of the agency's notice of processing or new decision 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
December 16, 2002
__________________
Date