01a30212
02-17-2004
Cecelia M. Salley v. Social Security Administration
01A30212
2/17/04
.
Cecelia M. Salley,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A30212
Agency No. 01-0401-SSA
Hearing No. 140-A2-8181X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission AFFIRMS the agency's
final order.
The record reveals that complainant, a Contract Court Reporter at the
agency's Columbia, South Carolina facility, filed a formal EEO complaint
on June 14, 2001, alleging that the agency had discriminated against her
on the bases of sex (female), age (D.O.B. 3/12/41), and retaliation when:
(1) she was subjected to sexual harassment and a hostile work
environment; and
the agency refused to renew contract services and/or offer her permanent
employment.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding the complaint did not state a claim because complainant was an
independent contractor, therefore not a federal employee covered under
29 C.F.R. � 1614 et seq.
In her decision, the AJ addressed the factors used by the Commission to
determine whether a complainant is an employee or independent contractor.
In that regard, the AJ noted that although some factors pointed towards
complainant's status as an employee, it was clear that complainant was
an independent contractor. Specifically, complainant's work as a court
reporter was not the type of work that was normally supervised; rather
she performed her court transcription services on her own due to the
specialized skill it requires. The AJ also noted that it was the intent
of the parties for complainant to be considered an independent contractor.
As evidence, the AJ pointed to the Memorandum of Understanding (MOU)
between the agency and the American Federation of Government Employees
(AFGE) which specifically states: "management desired to avoid the
appearance of any employer/employee relationship between the contractor
and the Agency, not only in the duties performed by the contractor, but
in the interpersonal relationship with employees of the hearing office."
The AJ also found that the agency paid for services through a voucher,
and contractors did not earn any leave, nor were social security taxes
withheld. In sum, the AJ found complainant was not an employee covered
under the federal sector process.
Assuming arguendo, that complainant was an employee, the AJ found
complainant failed to establish a prima facie case of sexual harassment.
Specifically, complainant alleged that she was subjected to a hostile
work environment because the agency conducted unauthorized background
investigations, made threats against her life, and condoned intimate
discussions about her sex life. The AJ noted that she had provided
complainant with the opportunity to provide sworn statements from
individuals who could corroborate complainant's allegations, but the
statements complainant provided did not support her claims. Furthermore,
the AJ found complainant failed to establish that any of the alleged
harassment was based on her membership in a protected class. As such,
the AJ found complainant failed to establish she was subjected to a
hostile work environment.
As for complainant's final allegation, the AJ found that complainant
failed to establish a prima facie case. As an initial matter, the AJ
found complainant's allegation that her contract was not renewed was
further support for the notion that complainant was not an employee.
Additionally, although complainant alleged that the agency failed to
hire her as a permanent employee, the AJ found complainant could not
point to a vacancy for which she applied. Assuming arguendo, that
complainant established a prima facie case, the AJ found the agency
articulated a legitimate nondiscriminatory reason for not renewing
complainant's contract, namely, that in light of complainant's behavior,
agency personnel feared for the safety of its employees.
On September 4, 2002, the agency issued a final order that implemented
the AJ's decision.
On appeal, complainant restates arguments previously made before the AJ.
Furthermore, she contends that she is an employee and not an independent
contractor. In response, the agency restates the position it took in
its FAD, and requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 (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
2/17/04
Date