01a54031_r
10-07-2005
Abraham J. Pusa, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Abraham J. Pusa v. Department of Justice
01A54031
October 7, 2005
.
Abraham J. Pusa,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 01A54031
Agency No. F-03-5781
Hearing No. 340-2004-00156X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant filed a formal EEO complaint on June 30, 2003, alleging that
the agency discriminated against him on the basis of age when:
by letter dated May 28, 2003, he was not selected for the position of
Contract Linguist Specialist.
The record reflects that complainant completed an on-line application to
work as a Contract Linguist Specialist. Complainant passed the Foreign
Language Test Battery to qualify as a Contract Linguist. Complainant
submitted the following documents to the agency: a completed Standard Form
86, "Questionnaire for National Security Position; authorizations for
release of information; a dual citizenship declaration; his certificate
of naturalization; his Turkish passport; and college transcripts.
Upon receipt of complainant's documentation, a FBI Special Agent conducted
complainant's Personnel Security Interview (PSI). Based upon the results
of the PSI and credit check, the agency determined that complainant was
not suitable to work as a Contract Linguist.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Thereafter, the agency filed a Motion to Dismiss or in the
alternative, an Agency's Motion to Dismiss and Stay Proceedings.
In its motion, the agency requested that the AJ dismiss complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a
claim, finding that complainant does not have standing to bring a claim
of discrimination because he was neither an employee nor an applicant
for federal employment. Specifically, the agency argued that Contract
Linguist Specialist was a contract position, and therefore, complainant is
not an employee or applicant for employment covered by the administrative
EEO process. The agency argued that after complainant applied on-line and
was identified as a candidate for a Contract Linguist position, the agency
conducted a background investigation. The agency argued that after an
investigation of complainant's background, the agency made a determination
to terminate complainant's application for the subject contract position.
The agency argued that during the relevant time, complainant was never
told that he was a candidate for employment, rather he was told he was a
candidate to become "associated" with the agency upon a "contract" basis.
The agency further argued that Contract Linguists are uniquely skilled
professionals whose language services are provided as needed. The agency
argued that Contract Linguist are self-employed; do not receive benefits
and leave; do not have their social security taxes paid; are not placed
on a performance plan; and are not appraised for their performance.
Consequently, the agency argued that complainant lacks standing to bring
a claim of discrimination.
On February 4, 2005, the AJ granted the agency's motion, dismissing
complainant's complaint for failure to state a claim finding that
complainant was an applicant for a contract position. The AJ found that
the agency does not have sufficient control over the "means and manner"
of the Contract Linguists' performance to constitute an employer-employee
relationship. The AJ found that as a result, complainant had no standing
to bring this claim of discrimination. Further, the AJ determined that
because she granted the agency's motion on procedural grounds, she would
not address the merits of the complaint.
On April 7, 2005, the agency issued a final order implementing the AJ's
dismissal.
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 complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 0 1962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 218, 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 Ma v. Department of Health and Human Services, supra.
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,
were not appreciably different from the common law of agency test. Id.
The record supports a determination that complainant was an applicant for
a contract position, and was neither a federal employee nor an applicant
for federal employment.
For the reasons set forth herein, the Commission AFFIRMS the agency's
final order implementing the AJ's dismissal of the instant complaint.
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
October 7, 2005
__________________
Date