0120093553
12-10-2009
Bobbie J. Davidson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bobbie J. Davidson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093553
Agency No. ARCEVICK09MAY02062
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 23, 2009, 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 her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when she was harassed and forced to sign
a contract of termination.
The agency dismissed complainant's complaint pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a)(1) for failure to state a claim.1 Specifically,
the agency determined that complainant was an independent contractor and
not an agency employee entitled to pursue her claim through the federal
EEO complaint process. EEOC Regulation 29 C.F.R. � 1614.107(a)(1)
provides that 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). Accordingly, a complaint may be dismissed for failure to state
a claim when the complainant is not an agency employee or applicant for
employment within the federal government.
The Commission has applied the common law theory test to determine whether
complainants are agency employees under laws enforced by the EEOC. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962389 &
01962390 (May 29, 1998)(citing Nationwide Mutual Insurance Co. v. Darden,
503 U.S. 318, 323-24 (1992)); Baker v. Department of the Army, EEOC
Appeal No. 01A45313 (March 16, 2006). 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 work accumulates retirement benefits; (11) whether the "employer"
pays social security taxes; and (12) the intention of the parties.
See id. 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.
Here, complainant alleges that the agency's termination of complainant's
contract with the agency was an attempt by the agency to smear and
ruin complainant's working reputation for future employers. Moreover,
complainant alleges that a member of the agency's Chief Safety Office
made inappropriate sexual advances toward her. On appeal, complainant
argues simply that her work reputation as a contract employee speaks
for itself and she maintains that she should receive the same rights
that any other employee would receive.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. Complainant does not dispute that she is a
contract employee. In fact, throughout the complaint and appeal process,
she identifies herself as a contract employee. The record indicates that
agency entered into a contract with BJ Davidson Nursing. The stated term
of the contract was one year from June 1, 2007 through May 31, 2008 with
four option years. The contract was in the first option year when it
was terminated. The record further r indicates that under the terms of
the contract, complainant, through BJ Davidson Nursing, was to provide
the services of a Licensed Practical Nurse (LPN) including administering
emergency first aid to injured agency employees, treating minor illnesses
and injuries of agency employees including minor colds, cuts, bruises,
burns, etc. In addition, complainant was required to assist the contract
physician in the performance of physical examinations and fitness for
duty examinations. Complainant was paid on a daily basis and by terms of
the contract, if complainant did not work on a particular day or provide a
replacement LPN to perform services under the contract, she was not paid
for that day. The agency did not withhold any taxes or social security
payments from payments made to complainant under the contract. The agency
did not provide complainant any annual or sick leave, nor did the agency
provide retirement or other benefits to complainant. Complainant was not
supervised by agency employees nor did agency employees direct the type
of medical services or treatment provided by complainant at any time.
Based on the record before us, we find that the complainant is not
an employee of the agency. Therefore, the Commission finds that the
matter was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
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
December 10, 2009
__________________
Date
1 We note here that the agency also dismissed the instant matter on an
alternate basis as untimely pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(2) for failure to timely file her formal complaint.
Because we find that complainant fails to state a claim, the Commission
will not address the agency's alternate grounds for dismissal.
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0120093553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093553