0120092499
09-18-2009
Anthony J. Stonecipher, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Anthony J. Stonecipher,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092499
Agency No. ARWSMR09FEB00876
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 14, 2009, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that complainant's complaint was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1).
During the relevant period, complainant worked as a Telecommunications
Technician at a New Mexico facility of the agency. Complainant worked
for Westech International, Inc. (Westech), which is a subcontractor to
New Mexico Technology Group, LLC (NewTec), a Federal prime contractor.
In a formal EEO complaint dated March 31, 2009, complainant alleged
that the agency subjected him to hostile work environment harassment on
the bases of race (White), disability (Post Traumatic Stress Disorder),
and reprisal for prior protected EEO activity when management used harsh
work assignments and overtime to bully workers from reporting abuse.
Prior to that time, in February 2009, complainant alleged other harassing
actions by agency management.
In its April 14 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim. Specifically, the agency found that it did not exercise sufficient
control over complainant's employment and, hence, that complainant was
not a Federal employee. The instant appeal from complainant followed.
On appeal, complainant stated that he performed 99% of his duties on
agency property, used agency equipment and drove an agency vehicle,
and that an agency civilian employee (S1) supervised him because S1
determined his assignments, duty hours, and overtime.
The record contains a questionnaire answered by a Westech Human Resources
Officer indicating that Westech was complainant's employer with discretion
to discipline or terminate employment and provided an on-site lead who
helped coordinate assignments; NewTec provided on-site supervision;
and the agency provided some day-to-day communications and all tools,
materials, equipment, and work locations. Further, the questionnaire
responses indicate that complainant was paid hourly and that Westech
provided all benefits and withheld taxes. The record also contains
a declaration from a NewTec Vice President corroborating the above
contentions, and stating that a collective bargaining agreement governs
the matter and that the employment relationship exists between complainant
and Westech.
Here, the Commission must determine whether the complainant was
an agency employee or applicant for employment within the meaning
of Section 717(a) of Title VII of the Civil Rights Act of 1964,
an amended, 42 U.S.C. 2000e-16(a) et. seq. Under the Commission's
Enforcement Guidance: Application of EEO Laws to Contingent Workers
Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC
Notice No. 915.002 (December 3, 1997) (hereinafter referred to as the
"Guidance") (available at www.eeoc.gov.), we have recognized that a
"joint employment" relationship may exist where both the Federal agency
and the "staffing firm" may be deemed employers.1 A determination of
joint employment requires an assessment of the comparative amount and
type of control the staffing firm, and the agency each maintain over
complainant's work. Thus, a federal agency will qualify as a joint
employer of an individual if it has the requisite means and manner of
control over the individual's work under the Ma criteria,2 whether or
not the individual is on the Federal payroll. See Guidance, supra at 11.
The Commission finds that the complaint fails to state a claim under
EEOC regulations. Based on the legal standards and criteria set forth
herein, we find that the agency did not exercise sufficient control over
complainant's position to qualify as his employer (joint or otherwise)
for the purpose of the EEO complaint process. Accordingly, we AFFIRM
the agency's final decision dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 18, 2009
__________________
Date
1 Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers may
be hired by "staffing firms" which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
2 See Ma v. Dep't of Health and Human Services, EEOC Appeal
Nos. 01962389 & 01962390 (May 29, 1998) (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 Ma,
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.
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0120092499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092499