Cecelia M. Salley, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionFeb 17, 2004
01a30212 (E.E.O.C. Feb. 17, 2004)

01a30212

02-17-2004

Cecelia M. Salley, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


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