01A33074_r
08-28-2003
Veronica V. Cartier, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Veronica V. Cartier v. Department of State
01A33074
August 28, 2003
.
Veronica V. Cartier,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A33074
Agency No. 03-25
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 1, 2003, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of national origin
(Indonesian) when, on September 3, 2002, she learned that she had been
classified as an "Administrative Escort," which has a lower pay rate
than that of an "Interpreter," the position for which she was trained.
The agency dismissed the complaint for failure to state a claim on the
grounds that complainant provided services to the agency as an independent
contractor and was not entitled to bring an employment discrimination
complaint against the agency.
The record contains a letter dated July 19, 2002, which indicates that
complainant was hired as a contractor under a basic ordering agreement
by the agency's Office of Language Services to provide interpreting
and administrative assistance to a group of official visitors from
Indonesia. Additionally, a December 27, 2002, document identified as
"Work Order For Job #MCW0620020000083" is associated with the record.
The document notes that complainant was authorized to provide services
for the Office of Language Services from July 28, 2002 to August 3,
2002 under a basic ordering agreement with the agency. It was noted
that the original document was signed by the Contracting Officer for
the agency's Office of Language Services. Moreover, the record contains
a copy of the standard basic ordering agreement and a copy of the rate
sheet in effect at the time of assignment.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant for
employment within the meaning of Section 717(a) of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e-16(a) et seq.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Co. et al 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 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 id.
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,
was not appreciably different from the common law of agency test. See id.
Under this test, the Commission finds that complainant was not an employee
with the agency. The record contains evidence reflecting that complainant
was paid as a contractor and that the agreement between complainant and
the agency provided that either party may cancel the agreement upon 30
days written notice. The record also reflects that complainant did not
accrue leave, accumulate taxes, or pay social security benefits and that
complainant's work was not an integral part of the agency. Moreover,
in the Counselor's Report, complainant identified herself as contractor.
Under such circumstances, the Commission determines that complainant
was not an agency employee and that the complaint was properly dismissed
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
August 28, 2003
__________________
Date