01A12690
06-20-2002
Wellington J. Williams, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Wellington J. Williams v. Environmental Protection Agency
01A12690
June 20, 2002
.
Wellington J. Williams,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A12690
DECISION
Complainant filed an appeal dated March 6, 2001, with this Commission
regarding his claim that he was subjected to unlawful employment
discrimination when the agency terminated him from its employment.
According to the agency, complainant never filed a formal complaint of
discrimination regarding the alleged discriminatory matter. The record
reveals, however, that complainant contacted his Congresswoman in
late January 2001, alleging that his January 26, 2001 termination
from the agency's Senior Environmentalist Employment (SEE) Program
was discriminatory. In response, complainant's Congresswoman contacted
the agency on February 5, 2001. The agency responded in a letter dated
March 2, 2001, noting that enrollees in the SEE program are not federal
employees. Additionally, the agency concluded that complainant's
termination from the SEE program was based on funding concerns
and not based on race, age, reprisal, or disability discrimination.
The Commission will treat the agency's March 2, 2001 letter as a final
decision on the matter.
The Commission accepts complainant's appeal and will address the issue
of whether the agency correctly determined that complainant is not an
employee of the agency. At the outset, however, we find that the agency
should have allowed complainant to pursue EEO counseling and file an EEO
complaint concerning his claim that his termination from the SEE program
was discriminatory. This processing is vital for clarifying the matters
being raised, as well as providing an opportunity for informal resolution.
We note that allowing complainant to file an EEO complaint with the
agency would not have precluded the agency from later dismissing the
complaint for failure to state a claim on the grounds that complainant
was not an employee of the agency.
The record reflects, that for the relevant period in question, complainant
worked under the Senior Environmental Employment Program (SEE) for the
Environmental Protection Agency (EPA). During this period, the National
Older Workers' Career Center (NOWCC) was a grant recipient. On January
26, 2001, complainant was removed from his position. Specifically,
the EPA decided that due to budget cuts, funding for complainant's SEE
program assignment was terminated.
In its March 2, 2001 letter, the agency stated that with regard to
SEE program enrollees assigned to the EPA, federal employees monitor
and direct the work assignments of the enrollees, but may not hire,
discipline, or discharge enrollees. The agency stated that decisions
regarding hiring, disciplining, or discharging enrollees are made by the
organization that enrolled the individual as a SEE program participant.
The agency stated the organization that enrolled complainant was NOWCC,
and that he was under the supervision of Person A, Director of the NOWCC
program for Denver, Colorado. The agency provided no documentation in
support of its assertion that complainant was not a federal employee.
On appeal, complainant provided a copy of the SEE Position Description for
his position with the agency which specifies that �anyone who joins the
Senior Environmental Employment Program does not become an EPA employee,
but is enrolled in a grant-funded program under the sponsorship of one
of the seven national aging organizations.� The record does not contain
any further information concerning the issue of whether complainant
under the SEE program was considered an employee of the agency.
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, as amended, 42 U.S.C. � 2000e-16(a).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment ... in executive agencies
... shall be made free from any discrimination based on race, color,
religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency by
Title VII only if he may be deemed an employee of the agency or applicant
for employment with the agency.
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed
to be "employees" under section 717 of Title VII. 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 Zheng v. Department
of Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998);
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)). 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.... Instead, all of the incidents
of the relationship must be assessed and weighed with no one factor
being decisive."
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.
Accordingly, the agency's decision is VACATED and we REMAND the matter
to the agency for further processing in accordance with this decision
and applicable regulations.
ORDER
The agency, within fifteen (15) calendar days of the date this decision
becomes final, is ORDERED to provide complainant with EEO counseling
in accordance with 29 C.F.R. � 1614.105. The agency shall also issue
a notice of right to file a complaint to complainant pursuant to 29
C.F.R. � 1614.105.
A copy of the agency notice providing complainant with EEO counseling
and a copy of the notice of the right to file a complaint must be sent
to the Compliance Officer as referenced below.
If complainant files a complaint, then the agency shall supplement the
record with evidence which shows whether complainant was an employee
using the common law of agency test as defined in Ma, EEOC Appeal
No. 01962390 and described in this decision. Thereafter, the agency
shall either issue a letter to complainant accepting his claim for
investigation or issue a new decision dismissing the matter. A copy
of the agency's letter accepting the claim for investigation or a copy
of the new decision dismissing the claim 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
June 20, 2002
__________________
Date