01a52253
11-17-2005
Walid Mustafa, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Walid Mustafa v. Department of Veterans Affairs
01A52253
November 17, 2005
.
Walid Mustafa,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52253
Agency No. 200N-0612-2004101246
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated February 24, 2004, complainant
alleged that he was subjected to discrimination on the bases of national
origin (Palestinian) and religion (Muslim) when he was terminated from his
position with a contractor, who has a service contract with the agency.
The agency previously dismissed complainant's complaint pursuant to the
regulation set forth at 29 C.F.R.� 1614.107(a)(l), for failure to state
a claim on the grounds that complainant was not a Federal employee.
The agency found that complainant was an employee of A-1 Security
Services, Inc., a contractor with the agency. Complainant appealed
and the Commission remanded the case back to the agency for further
processing. Mustafa v. Department of Veterans Affairs, EEOC Appeal
No. 01A44895 (November 18, 2004). The Commission ordered the agency
to analyze whether or not complainant was an employee of the Federal
Government or of a private contractor, using the standards set forth in
Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1,1998). Following the agency's decision addressing the Ma
standards, complainant appeals.
The Commission notes that EEOC Regulation 29 C.F.R. 1614.107(a)(1)
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that
he or she has been discriminated against by the agency because of race,
color, religion, sex, national origin, age or disabling condition. See 29
C.F.R. �� 1614.103, .106(a). Accordingly, a complaint may be dismissed
for failure to state a claim when the complainant is not an employee or
applicant for employment with the federal government.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under laws enforced by
the EEOC. See Ma v. Department of Health and Human Services, (citing
Nationwide Mutual Insurance 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 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. 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, after balancing many factors, finds
that complainant was not an employee of the agency. The record, which
contains the contract between A-1 Security Service and the agency,
indicates that the contractor is responsible for providing management and
on-site supervision of contract personnel. It further indicates that
the �contractor shall be responsible and legally liable for employee
performance and for maintaining satisfactory standards of employee
competency, conduct, appearance, and integrity.� The contract also
indicates that the contractor is responsible for staffing, equipment,
supplies, uniforms, training, scope of work, etc., for its employees.
This contract notes that disciplinary actions, including removals are
to be the responsibility of the contractor. Additionally, the contract
reflects that payments are made by invoice to the contractor, not to the
individual guards, and that the contract price includes all applicable
taxes. Complainant did not accumulate federal retirement benefits.
Finally, the contract indicates that �as a non-personal service contract,
these personnel are not to be considered VA employees for any purpose.�
From the weight of this evidence it appears that all the important
indicia of employment--hiring, means and manner of work performance,
evaluations and termination--were all controlled by A-1 Security Services,
Inc. Complainant has not presented evidence of record to establish that
the agency, rather than A-1 Security Services, exercised the real control
over complainant's employment. Under such circumstances, the Commission
determines that complainant was not an agency employee under the purview
of our regulations. 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
November 17, 2005
__________________
Date