Betty M. Burnett, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 6, 2009
0120090223 (E.E.O.C. Feb. 6, 2009)

0120090223

02-06-2009

Betty M. Burnett, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Betty M. Burnett,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120090223

Agency No. 200I-0557-2008103195

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated September 18, 2008, dismissing her 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.

During the period at issue, complainant was a Community Nursing Assistant

(CNA) through a corporate entity identified as Nurse's Etc. Staffing

(hereinafter referred as "Nurse's"), working under a contract with

the agency. Complainant worked for the agency's Carl Vinson Veterans

Affairs (VA) Medical Center in Dublin, Georgia.

In the instant formal complaint, filed on June 20, 2008, complainant

alleged that she was subjected to discrimination on the basis of age

when:

on May 22, 2008, she found out that effective May 31, 2008, her contract

as a CNA with the Carl Vinson VA Medical Center ended.

In its September 18, 2008 final decision, the agency dismissed

complainant's complaint for failure to state a claim pursuant to 29

C.F.R. � 1614.107(a)(1). The agency determined that complainant was not

a Federal employee, and that she was instead a contractor, not covered

by Title VII.

The record contains a document identified as "Request, Turn-In, and

Receipt for Property or Services" dated May 30, 2007 prepared by the

Program Assistant (PA). The record reflects that in the Special Remark

section, PA stated "Request made to renew nursing contract for 12 month

period." The record contains a copy of PA's e-mail dated September 18,

2008 to the investigator. Therein, PA stated that complainant was a

contractor employee under a "pre-determined" contract between the agency

and Nurse's. PA stated that Nurse's entered into the contract to provide

a full-time CNA, 40 hours per week. PA stated that complainant was

employed in the position of CNA until May 22, 2008 when she was notified

that her assignment with the agency would end effective May 31, 2008.

According to PA, complainant's contractor position was required by a VA

supervisor but Nurse's had the "ultimate right to control" complainant

as their employee. PA stated that the agency was not responsible for

complainant's salary, benefits and taxes. The record reflects that the

agency determined that Nurse's made the determination to end complainant's

employment with the agency, not the agency.

Furthermore, the record in the case reflects that during the EEO

counseling process, complainant identified herself as a contractor

employee of the agency. In her report, the EEO Counselor stated that

complainant "was asked if she knew what being a Contract employee meant.

She stated she did and wanted to continue with the process." The record

further reflects that in her complaint, complainant stated "on or about

September of 2005, I was hired by Nurse's Etc. Staffing as a CNA and

placed for an assignment at the VA. I was notified that my assignment

at the VA will end effective May 31, 2008. In essence, I was laid off."

The Commission has applied the common law of agency test to determine

whether an individual 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, as amended, 42 U.S.C. 2000e-16(a) et. seq. 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. 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.

Furthermore, 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"), we have also recognized that

a "joint employment" relationship may exist where both the agency and the

"staffing firm" 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 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, whether or not the individual is on the federal payroll.

See Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16,

2006).

Based on these legal standards and criteria, we find that the agency did

not exercise sufficient control over the complainant's position to qualify

as the employer or joint employer of complainant. See generally, Baker

v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).

The agency's dismissal was appropriate and we AFFIRM the agency's final

decision.

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

February 6, 2009

__________________

Date

2

0120090223

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120090223