01A34709
12-02-2003
Michael R. Jackson, Complainant, v. Keith R. Hall, Director, National Reconnaissance Office Agency.
Michael R. Jackson v. National Reconnaissance Office
01A34709
December 2, 2003
.
Michael R. Jackson,
Complainant,
v.
Keith R. Hall,
Director,
National Reconnaissance Office
Agency.
Appeal No. 01A34709
Agency No. 2003-03
DECISION
Complainant filed an appeal with this Commission from a July 8,
2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim, and alternatively pursuant to
29 C.F.R. � 1614.107(a)(5) on the grounds of mootness. In his complaint,
complainant alleged that he was subjected to discrimination based on
age when:
On January 7, 2003, complainant was denied training.
In dismissing the complaint for failure to state a claim, the agency
indicated that complainant stated that he was a contract employee,
employed by Viacom Services on a subcontract to AT&T and assigned to
the agency. The agency therefore concluded that complainant was not
an employee. The agency noted that it did not control the means and
manner in which complainant carried out his job to an extent sufficient to
qualify him as a �de facto� employee of the agency. The agency also noted
that it did not provide him with retirement benefits, income or social
security taxes or offer complainant annual leave. The agency further
noted that complainant did not report to a government supervisor nor was
his performance evaluated by a government official. The agency stated
that it had privity of contract with the prime contractor and the prime
contractor had privity of contract with subcontractors. The agency also
stated that any agency involvement with the subcontractor was channeled
through the prime contractor.
With regard to its dismissal of complainant's complaint as moot, the
agency noted that complainant informed the EEO Counselor that he would
be taking a training class the week of May 19, 2003.
On appeal, complainant challenges the agency's dismissal of his complaint.
Specifically, complainant states that he is still not receiving the
training that his co-workers received.
Failure to State a Claim Dismissal
Complainants who are neither agency employees nor applicants for
employment do not have standing to pursue their discrimination claims in
the federal administrative process. The Commission has held that it will
apply the common law of agency test to determine whether a complainant
is an employee. 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.
Other than the agency's conclusionary statements in its decision, the
record contains no evidence upon which the Commission can determine
whether complainant is or is not an employee of the agency. Without, for
example, a copy of the contract governing the relationship between Viacom
and complainant, the Commission cannot determine whether complainant
has standing to raise a claim. The agency also does not provide other
pertinent evidence for the record, such as supervision level, skill
required, method of payment of salary to complainant, responsibility
for retirement or other benefits, responsibility for social security
taxes, intention of the parties, or any other information that would
allow the Commission to determine the relationship between complainant
and the agency. Because it cannot be determined on the present record
whether the complainant has standing to bring the complaint, 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.
Mootness Dismissal
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the factfinder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
Upon review, we find that the agency improperly dismissed complainant's
complaint on the grounds that it was moot. Specifically, complainant
alleged that he was denied training on January 7, 2003, that was afforded
to younger employees. Although the agency claims that complainant
was scheduled to receive training, it has presented no evidence that
complainant actually received the requisite training. Thus, we find
that the agency failed to show that interim relief has completely and
irrevocably eradicated the effects of the alleged discrimination and thus,
improperly dismissed complainant's complaint.
The agency's dismissal of the complaint is VACATED and the complaint is
REMANDED to the agency for further processing consistent with the Order
below and applicable regulations.
ORDER
The agency shall conduct a supplemental investigation and supplement the
record with evidence which shows whether complainant was an employee
of the agency focusing on the factors set forth in Ma. Specifically,
the agency shall place in the record a copy of the contract between
the agency and Viacom Services, the contract between complainant and
Viacom Services and the agency, the contract between AT&T and the agency,
and the contract between Viacom Services and AT&T, if any. Thereafter,
the agency shall either issue a final decision dismissing the complaint
or a letter accepting the complaint for investigation. The supplemental
investigation and issuance of the decision or letter of acceptance must be
completed within 30 calendar days of the date this decision becomes final.
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 below.
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
December 2, 2003
__________________
Date