01A03036
02-23-2001
Bernard G. Lopez, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Bernard G. Lopez v. U.S. Department of the Navy
01A03036
February 23, 2001
.
Bernard G. Lopez,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03036
Agency No. 98-00251-053
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 22, 2000, dismissing his complaint of unlawful
employment discrimination which he brought pursuant to the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Review of the record shows that complainant is a retired agency employee
who had previously worked at the agency's Puget Sound Naval Shipyard
(Shipyard). Subsequent to his retirement, complainant worked for a
private company, Applied Technology Associates, Inc. (ATA), as a computer
specialist. Under contract, ATA provided the agency with data in-putting
services at the Shipyard. From December 1, 1997 to approximately January
13, 1998, complainant completed training under the ATA contract at the
Shipyard on a day-time shift. Thereafter, ATA assigned complainant to
the �graveyard� shift to work on a full time basis.
Complainant, acknowledged by all parties to be an individual with a
disability (ambulation),<2> had used public transportation during his
training period to access his Shipyard work site. However, because
suitable public transportation was not available during the �graveyard�
shift, complainant asked ATA to provide him with a designated disability
parking space on the Shipyard premises. Complainant provided ATA with
medical documentation that he was unable to walk the distance to his
work place from the parking located outside of the Shipyard premises.
By letter to the agency dated December 16, 1997, ATA explained the above
circumstances, and requested a disability parking space for complainant.
In its January 7, 1998 response, the agency denied the request because
complainant was not an agency employee, and that the agency had no duty
to provide a reasonable accommodation. The agency also noted that the
union agreement prohibited the agency from assigning parking spaces
to non-employees.
The contract for services between ATA and the agency expired on February
28, 1998, and complainant's work at the Shipyard ceased.
On March 25, 1998, complainant filed an EEO complaint on the basis of
disability, claiming that the agency's refusal to furnish the requested
parking space constituted a failure to provide a reasonable accommodation.
On August 6, 1998, the agency issued a decision dismissing the complaint
for failure to state a claim, finding that complainant was neither an
agency employee nor an applicant for employment. Complainant appealed
this determination.
On appeal, the Commission vacated the agency's decision, finding that the
record contained insufficient information to determine whether complainant
was an agency employee under the applicable legal criteria. In its Remand
Order, the Commission instructed the agency to conduct a supplemental
investigation to obtain information pertinent to this legal criteria,
and to render a decision based on this evidence. Lopez v. Department
of the Navy, EEOC Appeal No. 01986332 (August 24, 1999).
After conducting a supplemental investigation, the agency issued a
decision on February 22, 2000, again dismissing the instant complaint for
failure to state a claim, finding that complainant was an independent
contractor employed by ATA. With reference to the applicable legal
criteria, the agency found that ATA was responsible for complainant's
work schedule; method of payment; social security taxes; and the means and
manner of performance of his job. The agency concluded that complainant
was not an agency employee. The instant appeal followed.
On appeal, complainant argues that all of the work he performed was
conducted on agency premises with agency equipment. He asserts that the
agency's denial of the parking space because of the union agreement is
a sham, and notes that he was provided with a disability parking space
when he was employed at the Shipyard by the agency. Complainant avers
that for the purpose of invoking the protections of the EEO laws and
the Americans with Disability Act (ADA), he should be considered a Navy
employee because of the detrimental impact on his ATA employment at the
Shipyard resulting from the agency's denial.
The Commission's regulations provide that an agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that the agency has discriminated against him because of race,
color, religion, sex, national origin, age, or disability. 29 C.F.R. �
1614.103. If not an �employee or applicant for employment,� despite
being aggrieved, a complainant has no standing to file a complaint under
the EEOC's regulations, and the agency must dismiss the complaint. See
29 C.F.R. � 1614.107(a)(1).
In order to determine whether an individual is an employee, "the
Commission will apply the common law of agency test, considering all
of the incidents of the relationship between the [complainant] and the
agency..." Ma and Zheng v. Department of Health and Human Services,
EEOC Appeal Nos. 01962390 and 01962389 (June 1, 1998). 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 further 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).
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and
Other Staffing Firms (December 3, 1997) (Guidance), we also recognize that
a �joint employment� relationship may exist where both the agency and the
�staffing firm,� such as ATA, may be deemed employers. Similar to the
analysis set forth above, a determination of joint employment requires
an assessment of the comparative amount and type of control the �staffing
firm� and the agency each maintained over complainant's work.
Based on the legal criteria set forth above, we find that complainant
was not an employee of the agency, either solely or jointly with ATA,
while providing services under the ATA contract. The record reflects that
the agency had essentially no control over any aspect of complainant's
work, providing only space and equipment. In fact, statements by
both complainant and his attorney, as well as ATA, all acknowledge that
complainant was employed by ATA, and not the agency. [ATA's December 16,
1997 letter to the agency requesting a disability parking space for
complainant; attorney's January 28, 1998 letter to Shipyard Commander;
complainant's statements on EEO information form dated January 29, 1998]
Instead, complainant claims in essence that the agency has a duty to
provide him with a reasonable accommodation not because he is an agency
employee, but because of his authorized presence at the Shipyard as an
ATA employee. In effect, complainant argues the agency's failure to
provide him with a parking place �interfered� with his ATA employment,
thereby constituting a violation of the ADA. We note that the record
reflects that ATA's January 13, 1998 memorandum to complainant notified
him that he must either accept the graveyard shift or be terminated
despite the agency's refusal to provide parking.
In the Commission's recently issued Enforcement Guidance: Application of
the ADA to Contingent Workers Placed by Temporary Employment Agencies and
Other Staffing Firms (December 22, 2000), (ADA Guidance) the Commission
notes that the ADA has unique provisions not addressed in its former
Guidance, referenced above. However, the ADA Guidance, consistent with
our prior Guidance, specifically recognizes that an agency's obligation to
contingent workers under the ADA will only arise if employment status,
whether jointly or solely, is established. Likewise, both Guidance
provisions make reference to one exception to this under a �third party
interference theory,� where the �non-employer' may be liable under the ADA
if it interferes with the worker's employment opportunities with another
employer. However, we note that both Guidance provisions also correctly
recognize that a federal agency cannot be liable for discrimination
under a third party interference theory. See footnote 15 of ADA Guidance.
Accordingly, we find that the agency properly dismissed the instant
complaint for failure to state a claim, and we AFFIRM that determination.
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 (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
February 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Complainant use a prosthesis due to a left leg amputation.