01a40184
04-26-2004
Clifford L. Elow, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
Clifford L. Elow v. Department of State
01A40184
April 26, 2004
.
Clifford L. Elow,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Appeal No. 01A40184
Agency No. 03-39
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
The record reflects that complainant held a position at the agency,
as a Management Analyst, through a corporation identified as Lionel
Henderson & Company (LHC). On May 6, 2003, complainant filed a formal
complaint, alleging that he was subjected to discrimination on the bases
of disability and in reprisal for prior EEO activity when this position
was terminated effective May 31, 2003.
In its final decision dated September 9, 2003, the agency dismissed the
complaint for failure to state a claim, on the grounds that complainant
was a contractor and not an employee of the agency.
On appeal, complainant claims that during his tenure at the Department
of State, his terms and conditions of work were controlled by the
agency. Complainant acknowledges that he was interviewed by LHC, which
authorized his hire for a position with the agency. Complainant argues,
however, that all the terms and conditions of his employment were set
by the agency. Complainant alleges that the agency decided to cut
the funding of his position because he sought accommodation of his
disability. Complainant also claims that the agency is a joint employer.
The record in this case contains a letter from LH to complainant, dated
November 22, 2002. Therein, complainant was informed that he was being
offered a full time, exempt position with LH, as a Management Analyst 1
on an agency contract in the agency's Washington office. The hourly pay
was identified as $41.67 per hour, minus taxes and authorized deductions,
and the starting date of November 25, 2002. Complainant was informed
that he was eligible to enroll for LHC benefits; that LHC is an �at will�
employer, reflecting that complainant's employment had no specified term,
and could be terminated at will by either party.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. 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. See Ma v. Department of Health and Human Services, supra.
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., (citations omitted).
The Commission in Ma also noted that prior applications of the test
established in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979),
using many of the same elements considered under the common law test,
was not appreciably different from the common law of agency test. See Id.
As noted above, the record contains a November 22, 2002 written offer
of employment sent to complainant by LHC. However, the Commission
nonetheless determines that there is not sufficient evidence in the
record, i.e., affidavits or contractual documents regarding LHC, that
address the list of factors identified above. Because it is not clear
whether complainant was an agency employee, we shall remand the matter
so that the agency can supplement the record with evidence addressing
the common law of agency test as described in Ma.
Accordingly, the agency's dismissal of the instant complaint is VACATED.
The instant complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER
The agency shall supplement the record with evidence which shows whether
complainant was an employee of the agency using the common law of agency
test as defined in Ma, EEOC Appeal No. 01962390 and described in this
decision. Thereafter the agency shall determine whether complainant
was an employee of the agency and whether the instant complaint states
a claim of discrimination under 29 C.F.R. � 1614.103 or 1614.106(a).
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall either issue a letter to complainant accepting complaint
for investigation or issue a new decision dismissing the complaint.
A copy of the agency's letter accepting the complaint for investigation
or a copy of the new decision dismissing the complaint must be sent to
the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
April 26, 2004
__________________
Date