01A02795
06-14-2001
Arthur K. Chung, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.
Arthur K. Chung v. Department of Defense
01A02795
June 14, 2001
.
Arthur K. Chung,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service)
Agency.
Appeal No. 01A02795
Agency No. 99.134
DECISION
Complainant filed a timely appeal with this Commission from a decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights of 1964, as amended,
42 U.S.C. �2000e, et seq.
Complainant initiated contact with an EEO Counselor on July 7, 1999.
In a formal EEO complaint dated June 27, 1999, complainant claimed
that he was discriminated against on the bases of his race (Asian)
and national origin (Korean-American) when on May 15, 1999, he was
maltreated and abused by his Manager, the New Car Sales Manager for the
Overseas Military Sales Corporation (OMSC). Complainant also claimed
that since the incident on May 15, 1999, he has not been allowed to
go near the sales lot that he used to work at despite being told that
he was still employed by the OMSC. Subsequent to the filing of his
complaint, complainant amended the complaint to also include the issue
of his termination on November 29, 1999.
In its decision dated January 25, 2000, the agency dismissed the complaint
on the grounds that it failed to state a claim. The agency determined
that complainant's employment with the agency ended in June 1990.
According to the agency, complainant was not employed by the agency
at the time of the complaint, but rather he was an employee of OMSC,
who holds a contract with American automakers to sell automobiles in
overseas locations.
On appeal, complainant maintains that he was an agency employee at the
time of the relevant incidents. Complainant also states that he joined
the OMSC on March 8, 1999. Complainant claims that the agency failed to
transmit and oversee its EEO policy with regard to its subcontractor,
OMSC. In support of his appeal, complainant submits a statement
dated March 15, 1999, from an agency General Manager. This statement
certifies that complainant is a member of the agency's civilian component.
The statement notes that complainant is assigned to the position of New
Car Sales Agent, and that he is not command sponsored.
The determination of whether an individual is an employee of an agency
involves an analysis of the economic realities of the work relationship,
See Spirides v. Reinhart, 613 F.2d 826 (D.C. Cir. 1979). 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� withholds taxes and/or pays social security benefits; and
(12) the intention of the parties. See Esther DaVeiga v. Department of
the Air Force, EEOC Request No. 05930201 (July 13, 1993).
The record is inconclusive as to whether complainant could be considered
an �employee� of the agency at the time of the alleged incidents. We note
that an agency general manager stated in a letter dated March 15, 1999,
that complainant is a member of the agency's civilian component and that
he is assigned to the position of New Car Sales Agent. The letter also
stated that complainant is not command sponsored. Complainant states
on appeal that he joined the OMSC on March 8, 1999. In its decision,
the agency stated that complainant's employment with the agency ended
in June 1990. Clearly, this statement is at odds with the statement
regarding complainant's employment in the letter dated March 15, 1999.
The evidence of record needs to be supplemented with pertinent information
about complainant's employment status, the aforementioned factors of
the economic realities test, and the nature of the relationship between
the agency and the OMSC. We note that the record does not show what
role, if any, the agency had in the complainant's initial hiring and
subsequent termination by the OMSC. The letter terminating complainant
was signed by the Director of the OMSC, but it states that complainant's
agency agreement dated March 8, 1999, is hereby terminated due to his
failure to fulfill the terms and conditions of the agency agreement.
The agency has the burden of providing evidence and/or proof to support
its final decisions. Ericson v. Department of the Army, EEOC Request
No. 05920623 (January 14, 1993); Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992). We find that the agency
has failed to support its determination that complainant was not an
employee of the agency. Accordingly, the agency's decision to dismiss
the complaint on the grounds of failure to state a claim is VACATED.
This complaint is hereby REMANDED for further processing in accordance
with the Order below.
ORDER
The agency is ORDERED to make a determination as to whether complainant is
considered an �employee� under the test set forth in the instant decision.
The agency shall supplement the record with a copy of any employment
contract it has had with complainant, any contract entered into between it
and the OMSC that relates to complainant, and all other information that
is pertinent to deciding whether complainant is considered an �employee�.
The agency shall issue either a notice of processing or a new decision
within thirty (30) calendar days of the date of this decision.
A copy of the agency's notice of processing or new decision 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 (M0900)
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 14, 2001
__________________
Date