01A34697_r
12-01-2003
Barbara E. Madison, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Barbara E. Madison v. Department of Veterans Affairs
01A34697
December 1, 2003
.
Barbara E. Madison,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34697
Agency No. 200N-0691-2003102482
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 30, 2003, dismissing her 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.
In a formal complaint filed on June 5, 2003, complainant alleged that
she was the victim of unlawful employment discrimination on the basis
of race when on January 29, 2003, a Contract Consultant informed her
that her contract would not be extended again, and stated that she �did
not have a grasp of staffing knowledge and she would be given a negative
evaluation with a low rate in professionalism;� and on February 3, 2003,
she received a notice from the Contract Company, FPM1, notifying her
that she was not to return to her contract assignment at the VA-GLAHCS
Human Resources Office.
The record reveals during the relevant time complainant was a Human
Resources Specialist through a corporate entity identified as FPMI,
a division of Star Mountain, Inc., and worked at the agency's Human
Resource Management Service (HRMS) in Los Angeles, California.
On June 30, 2003, the agency dismissed complainant's complaint pursuant
to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
found that complainant did not meet the common law of agency test
necessary to satisfy requirements for employee standing.
The agency alternatively dismissed the instant complaint pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The agency
found that the alleged discriminatory event occurred on February 3,
2003, but determined that complainant did not initiate contact with an
EEO Counselor until April 17, 2003. The agency acknowledged that because
it determined that complainant was not an agency employee, she was not
required to attend the new employee orientation wherein the EEO process
and procedures were discussed.
Untimely EEO Counselor contact dismissal
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find that the agency improperly dismissed the complaint on the
grounds of untimely EEO Counselor contact. The agency determined that
complainant's initial EEO Counselor contact occurred on April 17, 2003.
However, the record contains an EEO Counselor's Report wherein the
Counselor notes that complainant indicated that she had contacted a
named EEO Specialist at the VA-GLAHCS EEO Office well prior to April
2003, in January 2003, under the assumption that she had filed an
informal EEO complaint. The Counselor further notes that complainant
indicated she thereafter contacted the Commission's Los Angeles District
Office on February 10, 2003, and spoke with an Administrative Judge
(AJ). Furthermore, the Counselor notes that complainant indicated that
she was instructed to file an EEO complaint against the contractor
with the Commission because she was determined not to be an agency
employee. The Counselor noted that complainant stated that on April 16,
2003, she contacted the EEO Specialist at the VA-GLAHCS, inquiring into
the status of her complaint, and became aware that the agency determined
that she had not officially filed an informal complaint. The record
supports a determination that, contrary to the agency's determination that
complainant initiated EEO Counselor contact in April 2003, complainant
contacted agency EEO officials in January 2003, with the intent to pursue
the EEO complaint process at that time. We determine that complainant's
January 2003 contact was timely with regard to the matters identified
in her formal complaint.
Failure to state a claim dismissal
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See 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)). 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,
was not appreciably different from the common law of agency test. See Id.
Here, the agency indicated that complainant was employed as a Human
Resources Consultant with its contractor, the FPMI, Huntsville,
Alabama. The agency further stated that a fair reading of the contract
indicates that the contractor was totally responsible for all aspects
of complainant's employment. However, the record contains a copy
of complainant's complaint dated June 2, 2003, wherein complainant
stated �I was a contractor employee under the complete control of the
VA, except for pay.� However, there is insufficient evidence in the
record as to whether complainant was, in fact, an agency employee under
Title VII. Thus, the Commission cannot determine whether the complaint
fails to state a claim, and the matter is remanded so that the agency
can supplement the record with evidence addressing the common law of
agency test as described in Ma.
In summary, the agency's decision to dismiss the complaint for untimely
Counselor contact is REVERSED. The agency's decision to dismiss the
complaint for failure to state a claim is VACATED, and the complaint is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final, the agency is ORDERED to take the following action:
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma, EEOC Appeal No. 01962390 and described in this
decision. Thereafter, the agency shall determine whether complainant
was an employee of the agency and whether the instant complaint states
a claim of discrimination under 29 C.F.R. � 1614.103 or 1614.106(a).
A copy of the new agency decision or notice of acceptance of 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 1, 2003
__________________
Date