0120082513
08-25-2008
Tanja L. Rouse, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Tanja L. Rouse,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082513
Agency No. ARRUCKER08JAN00202
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 11, 2008, 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.
On February 20, 2008, complainant, a student worker formerly engaged
by the U.S. Army Aeromedical Research Laboratory (USAARL), filed an EEO
complaint alleging that she was subjected to discrimination on the basis
of race (African American) when: (1) on December 21, 2007, and again on
December 26, 2007, she was notified that her contract with USAARL would
not be renewed; (2) she was subjected to a hostile work environment
from November 2007 to December 31, 2007, by the use of harsh, vicious
words spoken to her and the use of racial epithets by agency personnel
and coworkers; (3) her assigned job duties were far more challenging
and intense than for other students; and (4) she was ordered to work
longer hours than her contract allowed.
The agency dismissed the complaint for failure to state a claim.
The agency analyzed complainant's status using the factors identified
by the Commission in Ma v. Department of Human Health and Services,
EEOC Appeal No. 01962390 (June 1, 1998), and found that complainant was
an independent contractor, not a "de facto" employ of the agency.
In order to determine whether an individual is an "employee" under 29
C.F.R.� 1614. 106 (a) the Commission applies the common law agency test,
considering the full nature of the relationship between complainant and
the agency.
See Ma v. Department of Health and Human Services, EEOC Appeal No.01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Company v. Darden,
503 U.S.218, 323-24 (1992)). The Commission in Ma explained that there is
"no shorthand formula or magic phrase that can be applied to find the
answer ... [i]nstead, all of the incidents in the relationship must be
assed and weighed with not one factor being decisive."
The record indicates that there is a contract between the student
worker and USAARL. The contract is a purchase order for temporary or
intermittent services of students who are enrolled in a degree program
at a college or university. The contract is for a specific time period
with a set rate of pay not to exceed a specific amount for the designated
period, and may be terminated by either party upon fifteen days' notice.
The contract reflects maximum hours to be worked, and provides that it
is the student's responsibility to track hours worked. The contract
expressly states that the student worker is not a government employee,
is not entitled to leave or other employee benefits, and that the
government does not pay taxes on behalf of the student. A Program
Briefing incorporated into the contract reiterates that students are
independent contractors rather than government employees.
Upon review of the record, the Commission finds that the agency properly
dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) (1) for
failure to state a claim. Accordingly, the agency's final decision
dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 25, 2008
Date
2
0120082513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120082513