01A30378_r
05-22-2003
Walter Lamb, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Walter Lamb v. Department of Justice
01A30378
May 22, 2003
.
Walter Lamb,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A30378
Agency No. M02-0047
DECISION
Complainant appeals to the Commission from the agency's September
20, 2002 decision dismissing his complaint for failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant alleges
discrimination on the basis of disability when he was removed from his
position of Court Security Officer (CSO) on June 28, 2002. The agency
dismissed complainant's complaint for failure to state a claim finding
that complainant was not an employee, but was an independent contractor,
and therefore does not have standing to file a discrimination complaint
against the agency. Specifically, the agency found that complainant
was an employee of AVAL Security, Inc.
The Commission has held that it will apply the common law of agency test
to determine whether complainants should be deemed to be "employees"
under section 717 of Title VII. Specifically, the Commission looks at
a non-exhaustive list of factors: (1) the extent of 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 the 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 Ma and Zheng v. Department of Health and
Human Services, EEOC Appeal Nos. 01962390 and 01962389 (June 1, 1998).
In Ma, the Commission also 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 record is devoid of evidence as to whether or not complainant is an
employee or independent contractor. The record does contain five pages,
presumably from a contract between the agency and AKAL Security, Inc.;
however, the record does not contain the entire contract. Therefore,
the Commission is unable to tell whether this was a contract between
the agency and AKAL Security, Inc., a contract between the agency and
complainant, the agency and an unknown individual or entity, or simply
an internal policy guidance. Furthermore, the agency does not provide
other pertinent evidence for the record, such as supervision level,
skill required, method of payment of salary to complainant, retirement or
other benefits, social security, intention of the parties, or any other
information that may allow the Commission to determine the relationship
between complainant and the agency. The Commission finds that the
agency has not provided sufficient evidence in the record addressing
whether complainant was a federal employee. Because it is not clear
whether the agency has jurisdiction over the matter, we shall remand
the matter so that the agency can supplement the record with evidence
addressing the common law of agency test as described in Ma.
The agency's decision dismissing complainant's complaint is VACATED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.ORDER
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma, EEOC Appeal No. 01962390 and described in this
decision. The agency shall provide in the record the contract between
the agency and AKAL Security, Inc. and the contract between complainant
and AKAL Security, Inc. or the agency, if any. Thereafter the agency
shall determine whether complainant was an employee of the agency and
whether the instant complaint states a claim of discrimination under 29
C.F.R. �1614.103 or �1614.106(a). Within 60 calendar days of the date
this decision becomes final, the agency shall either issue a letter
to complainant accepting the complaint for investigation or issue a
new decision dismissing the complaint. A copy of the agency's letter
accepting the complaint for investigation or a copy of the new decision
dismissing the complaint must be sent to the Compliance Officer as
referenced herein.
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
May 22, 2003
__________________
Date