0120121735
08-24-2012
Terrence D. Hill, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Terrence D. Hill,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120121735
Agency No. FBI-2011-00252
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 31, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served the Agency as a Special Investigator with its Background Investigation Contract Services Unit (BICSU) - Minneapolis Division in Minnesota under a "labor-hour agreement."
On August 10, 2011, he filed a formal complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII when, in April 2011, it indefinitely suspended him from all assignments because his wife, an employee of the Agency, had filed an equal employment opportunity (EEO) complaint against the Agency alleging gender discrimination.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was not an employee of the Agency. Instead, the Agency considered him to be an independent contractor.
Following his retirement as a Special Agent for the FBI Complainant started serving the Agency in May 2009 as a Special Investigator doing background investigations in the Minneapolis Division. He served under a labor-hour agreement that was renewable annually. The Agreement indicates that the FBI conducts background investigations on candidates for employment with the FBI and other Federal agencies, as well as on individuals requiring security clearances and on current Federal employees who require investigations or reinvestigations for security clearances. Under the Agreement Complainant received his assignments to perform background investigations via work orders from the Agency, was required to submit unavailability for assignment at least 10 days in advance of the date of unavailability, and was considered in default of the Agreement if he refused five cases without approval.
Under the Agreement Complainant could be assigned different types of background investigations, including Full Field Investigation, Limited Scope Investigation, Reinvestigation or Other Investigation.1 According to the EEO counselor's report, Complainant was suspended by the Agency from being given assignments because of a potential conflict of interest. Because the EEO counselor's report in the record contains many redactions, the nature of the conflict is obscured, but the Agency indicated the conflict could not be avoided because it would not separate out the types of background investigations a Special Investigator performed, such as internal and external or ones on employees involved in working on "OPR" investigations.
On appeal Complainant argues that for purposes of Title VII he is an employee of the Agency. He argues that under the common law factors used to determine if there is an employment relationship the Agency had sufficient control over his service to be considered an employer. Complainant submits a factual statement on the factors in support of his contentions.
In opposition to the appeal, the Agency argues that under the common law factors used to determine if there is an employment relationship the Agency is not Complainant's employer.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't. of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. 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 work accumulates retirement benefits;
(11) whether the employer pays social security taxes; and
(12) the intention of the parties.
See Ma v. Dep't of Health and Human Serv., supra.
Not all or even a majority of the listed criteria need be met. The above factors are designed to determine whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Factors (1), (2), (5) - (7) and (9) Indicate that Complainant is an Employee
The Agency found that it did not have much control over the means and methods of Complainant's performance (factor 1). It reasoned that it did not control when, where, or how Complainant performed his job. We disagree with the Agency's conclusion. Complainant worked under an agreement where the Agency directly gave him all his assignments. If he rejected an assignment he had to submit a rejection form with the reason. Complainant further stated he was required to request time off, and the Agency could refuse to approve it. He was limited in the number of assignments he could refuse.
Complainant states he had a dress code, i.e., suit and tie. He stated he was instructed who to interview for the background investigation, and if he obtained information in one interview which he believed should be followed up by interviewing another person he had to get permission from the Agency. Complainant stated he was told how long the interview was to be and how to turn in reports, down to the font size. He worked under the oversight of an Agency employee, and under the labor-hour agreement his performance, work product, and professionalism were continuously evaluated by the Agency. The Agency required precise work methods and work product. Examples include having to obtain a Law Enforcement Online (LEO) email account and exclusively using it when submitting or receiving materials electronically, preparing reports on removable media such as thumb drive that uses NIST approved encryption technology and removing it therefrom once it is accepted and paid for, using a facsimile machine only Complainant had access too, keeping hardcopy records in a locked cabinet, and preparing reports in accordance with instructions and format established by an Agency guide. Factor 1 points to an employment relationship.
On factor 2 we find that the preponderance of the evidence is that Complainant did his work under Agency supervision. Complainant, as a Special Investigator, had an ongoing relationship with the Agency since May 2009, so factor 5 points to an employment relationship. While Complainant was paid by the job, it was based on an hourly rate. Complainant was required to submit invoices for his investigative time, and maintain supporting documentation such as a log for his investigative hours. Accordingly, because payment was based on time worked, factor 6 points to an employment relationship. Factor 7 also points to an employment relationship because the Agency had the power to suspend Complainant and did so. Finally, we find conducting background investigations is integral to the mission of the FBI, and that factor 9 points to an employment relationship.
Factors (3), (4), (8), and (10) - (12) Indicate that Complainant May not be an Employee
Conducting background investigations requires a great deal of interviewing and report writing skills which Complainant learned as a Special Agent. Factor 3 points to a contract relationship. Complainant furnished his own place of work and used his own equipment (factor 4). The Agency did not provide leave (factor 8), Complainant did not accumulate retirement benefits (factor 10), the Agency did not pay social security taxes (factor 11), and the labor-hour agreement provided that Complainant was neither a Federal Government nor an FBI employee (factor 12).
Weighing all the factors we find that the Agency exercised sufficient control over Complainant's position to qualify as his employer for the purpose of the EEO complaint process. The Agency's power to assign Complainant what work he performed, its control over the means of his performance, it continuous evaluation of him, and its power to unilaterally suspend him which it exercised are especially salient.
Accordingly, the Agency's decision to dismiss Complainant's complaint is REVERSED.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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
August 24, 2012
__________________
Date
1 According to the FAD, Complainant conducted five year reinvestigations for FBI Employees in the Minneapolis Field Office. The record does not reflect whether he was assigned other types of background investigations.
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0120121735
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121735