0120045278
02-15-2007
Clifford L. Elow, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Clifford L. Elow,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 0120045278<1>
Agency No. 03-39
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 29, 2004, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of a disability (sleep apnea) when:
he was denied a reasonable accommodation; and
he was terminated from his position.
The Commission vacated the agency's decision to dismiss and remanded
the case to the agency to perform a supplemental investigation on the
issue of whether complainant was an �employee� of the agency under
criteria set forth by the Commission in Ma v. Department of Health and
Human Services. EEOC Appeal No. 01962390 (June 1, 1998).<2> After
conducting the supplemental investigation, the agency issued a decision
affirming its previous decision to dismiss the complaint for failure to
state a claim.
The agency found that complainant, a Certified Public Accountant, working
as a Management Analyst in the agency's Office of Financial Oversight
and Coordination, was hired for his independence and professional
judgment, but he was not an employee. The agency further concluded that
complainant was not subject to the agency's control but only to that
of the staffing firm of Lionel Henderson & Co., Inc. (LHC). This was
because he was supervised by a LHC employee (S1) who made decisions
regarding complainant's assignments, his work-related issues, and his
requests for accommodation and leave. The agency stated that it did not
give complainant work assignments directly but only through task orders.
The contract delineated a description of the work to be performed,
�deliverable� requirements and the estimated time to perform the work.
The agency concluded that a LHC project manager exercised all control
over the manner and means of complainant's work product including keeping
his and other contractors' work schedules, and completing time cards
providing insurance and benefits.
On appeal, complainant argued that LHC and the agency were his �joint
employers� and that he was an employee under the criteria set forth
in the Commission's decision in Ma, not an independent contractor.
Complainant argued that LHC was a staffing firm for the agency but the
agency exercised control over his employment to such an extent that he
was an employee of the agency. He provided numerous documents that
he argued indicated he was subject to the supervisory control of the
agency and that the agency's manager (S2) approved his leave requests.
Complainant stated that he was interviewed by S2 who approved his hiring,
and with whom he worked after he was hired. He further argued that S2
assigned him work, supervised him in his work assignments and exercised
control over the timing of the finished work product. For these reasons,
complainant claimed he was an employee of the agency, not LHC.
ANALYSIS AND FINDINGS
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of the Rehabilitation
Act, it first must determine whether complainant is an �employee� or an
applicant for employment. The Rehabilitation Act expressly prohibits
discrimination by federal agencies against �employees� and �applicants
for employment� but not against independent contractors. Therefore,
complainant is protected from discrimination by the agency under the
Rehabilitation Act only if he may be deemed to be an employee of the
agency or an applicant for employment with the agency.
In Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16,
2006), the Commission applied the common law of agency test in order to
determine whether the complainants should be deemed to be an �employee.�
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. Id.
Under the Commission's stated policy, we recognized that a �joint
employment� relationship may exist where both the agency and the staffing
firm, such as LHC, are deemed to be employers. Enforcement Guidance:
Application of EEO Laws to Contingent Workers Placed by temporary
Employment Agencies and other Staffing Firms (December 3, 1997)(Guidance).
The inquiry requires a similar analysis of the factors surrounding the
issue of control over complainant's work. Thus, the Commission will find
an agency qualifies as a joint employer of an individual assigned to it
if it has the means and manner of control over that individual's work,
whether or not they are on the federal payroll. Guidance at 11.
Applying these factors to the instant matter, the Commission concludes
that complainant is an employee and not an independent contractor
of the agency for purposes of application of the Rehabilitation Act.
It is apparent from the record that the agency, through S2, controlled
the most significant aspects of complainant's employment. According to
the agency, complainant supported S2, Chief of the Office of Financial
Oversight and Coordination as a management analyst. The record was
undisputed that LHC was a staffing firm through which the agency
requested complainant's resume. The agency interviewed complainant
and then directed LHC to hire him. The agency provided the office,
telephone and equipment, approved his leave requests, supervised him
in his daily activities and gave him work assignments. Additionally,
according to the contract's terms, the agency retained the authority to
terminate any employee's employment. To that end, S1 stated he received
a memo from the agency directing him to terminate complainant's employment
roughly six months after he was initially hired.
The agency urges the Commission to find that it had no control over
complainant's work product or the terms of his employment, yet it
failed to submit any proof that LHC gave complainant assignments or
that S1 supervised complainant in his every day activities. There is
no sworn testimony of any agency manager or LHC manager disputing
complainant's assertion that S2 supervised him in his daily work
activities. Instead the agency relies solely on the contract language
that states LHC will provide supervision.<3> Although the terms of the
contract are probative of the parties' intent, evidence of the parties'
actual conduct is dispositive. Documentation of specific work products
that complainant produced, indicate direct communication between S2
and complainant regarding S2's approval of complainant's work, S2's
comments to complainant regarding an ongoing project and S2's approval
of complainant's leave request. Additionally, S1 stated that S2 was
responsible for disapproving complainant's request to telecommute as an
accommodation for his sleep apnea condition. These facts are strong
indicia that the agency exercised substantial control over the manner
and means of complainant's work and working conditions.
We note the responsibility of LHC for payment of social security taxes,
retirement and insurance, but as our Guidance states, a client of a
temporary employment agency or staffing firm typically qualifies as
an employer where it exercised significant control over the worker.
Guidance at 41. Therefore, from the facts outlined above, the Commission
concludes the agency, pursuant to the Baker decision, is for all intents
and purposes complainant's employer because it exercised significant
control over the manner and means of complainant's employment. In the
few instances where the agency did not act directly, LHC served only as
a conduit through which it carried out the agency's wishes.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the 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 the 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 (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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
__2-15-07________________
Date
1Due to a new data system, your case has
been redesignated with the above-referenced appeal number.
2The Commission's decision vacating the agency's dismissal is set forth in
Elow v. Department of State, EEOC Appeal No. 01A40184 (April 26, 2004).
3Contract at p. 47.