01984578
11-23-1999
Charlene Scott, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Charlene Scott v. Department of Energy
01984578
November 23, 1999
Charlene Scott, )
Complainant, )
)
v. ) Appeal No. 01984578
) Agency No. 98(069)HQ/HR
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
____________________________________)
DECISION
On May 29, 1998, complainant filed an appeal with this Commission from
a final agency decision (FAD) dismissing her complaint of unlawful
employment discrimination.<1> Complainant received the agency's FAD
on May 7, 1999, and accordingly, her appeal is accepted as timely.
In her complaint, she alleged that she was subjected to discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. on the bases of race (African/Asian), sex (female),
and retaliation for raising her harassment concerns with management.
Complainant raised the following claims:
Complainant was subjected to sexual harassment; and
Complainant was subjected to retaliation for complaining to management
about the sexual harassment she allegedly experienced by having her
employment terminated.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant was an independent
contractor, and therefore was not covered by EEOC Regulations. In the
FAD, the agency failed to explain why complainant was an independent
contractor, as opposed to an employee of the agency.
On appeal, complainant, argues, through her attorney, that complainant
had an employer-employee relationship with the agency. According to
complainant, she is a licensed social worker who was employed by an agency
health center. Complainant lists several factors to assert her status
as an employee, including, inter alia: (a) complainant had no written
contract with the agency -- she submitted her resume to the agency, was
hired by agency officials, and continued to work for an indefinite term
(complainant denies knowledge of any definite duration of employment);
(b) complainant reasonably believed she was an employee, and was
told by agency officials that her position could become permanent;
(c) the agency provided all of complainant's supplies, and required
no investment by complainant; (d) complainant worked exclusively for
the agency, and was not permitted to operate an independent business
or seek other employment while working for the agency; (e) complainant
had a continuing relationship with the agency which was not bound by a
particular project, and in fact, complainant was expected to help-out
in other work areas on occasion; (f) complainant received training
from the agency; (g) complainant was supervised by agency officials
who had day-to-day control over complainant's work, location, work
schedule, and the manner in which complainant completed her work;
(h) complainant had a very limited degree of independent judgment,
and her decisions could be accepted or rejected by agency supervisors;
(i) complainant had the same building access as other agency employees;
(j) complainant was integrated into the agency's other business; (k)
complainant's assistants were hired through the agency, which controlled
the terms of the assistant's employment, supervised them, terminated them,
but were paid through complainant; (l) complainant submitted time cards
to the agency, and was paid by the hour, not by the job/task; and (m)
complainant did not have a separate business plan or business insurance.
Complainant argues that the agency's reliance on a couple of factors,
namely, that complainant did not receive health or retirement benefits,
leave, or have taxes deducted from her check, does not prove that
complainant was an independent contractor.
The agency provided no response on appeal.
The record includes a letter from the agency's Office of General Counsel,
dated January 14, 1998. In this letter, the agency found that complainant
was an independent contractor because she had a six-month agreement
with the agency that could be renewed every six months, and because
the agency did not provide complainant with annual leave, sick leave,
retirement benefits, hospitalization/health benefits, or withhold
taxes from complainant's pay. The record does not contain a written
contract between complainant and the agency. The agency also provides
no information of the supervisory relationship, terms of employment,
method of payment, or any other condition of complainant's relationship
with the agency.
Before the Commission or the agency can consider whether the agency
has discriminated against complainant in violation of Title VII,
it first must determine whether complainant 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).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment."
The Commission has held that it will apply the common law of agency test
to determine whether the complainants should be deemed to be "employees"
under section 717 of Title VII. 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
worker accumulates retirement benefits; (11) whether the "employer" pays
social security taxes; and (12) the intention of the parties. See Zheng
v. Department of Health and Human Services, EEOC Appeal No. 01962389
(June 1, 1998); 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 (1992). In Ma, the Commission
also 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." Ma v. Department of Health and Human Services,
supra, (citations omitted).
In the present case, the agency has provided no support for its assertion
that complainant is an independent contractor. The agency even failed to
provide the Commission with a copy of the contract on which it relied in
its January 14, 1998 letter. Thus, the agency failed to substantiate
the bases for its final decision. See Marshall v. Department of
the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Further, the
Commission finds, based on complainant's uncontroverted assertions,
that complainant is an employee of the agency. The agency provided all
supplies for complainant's job, supervised the day-to-day operation of
her work, controlled the hours that she worked, had authority to reject
her decisions, provided complainant with the same access to facilities as
other employees, required complainant to help-out on projects that were
not within her normal duties, paid complainant by the hour based on her
time cards, and controlled the hiring, firing, and day-to-day work of
complainant's assistants. The fact that complainant was not afforded
leave or retirement benefits, and that the agency did not deduct taxes
from her paycheck, does not render complainant an independent contractor
when balanced against the findings listed above.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and complainant's claims
are REMANDED for further processing.
ORDER (E)
The agency is ORDERED to process the remanded claims in accordance with 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �1614.108).
The agency shall acknowledge to complainant that it has received the
remanded claims within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 23, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
date
__________________________
clerk
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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.