01a43204
05-31-2005
Colleen M. Murray, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Colleen M. Murray v. Department of Homeland Security
01A43204
May 31, 2005
.
Colleen M. Murray,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43204
Agency No. DOT-6-03-6045
Hearing No. 370-04-00144X
DECISION
Complainant filed this appeal from the March 11, 2004 agency decision
which adopted the February 27, 2004 decision of the EEOC Administrative
Judge (AJ), dismissing complainant's complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In her complaint, dated February 3, 2003, complainant alleged that
she was discriminated against on the bases of sex and disability when:
(1) on November 4, 2002, she was not hired as a transportation security
screener because she did not pass an assessment; and (2) on November 4,
2002, she was subjected to harassment when during the medical assessment
she was yelled at and accused of being gay and unnecessarily asked to
remove all her clothing by non-medical personnel.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an AJ. Thereafter,
the agency filed a motion with the AJ to dismiss the complaint.
As grounds for its dismissal motion, the agency stated that the complaint
failed to state a claim because complainant was not an applicant for
federal employment. Complainant did not oppose or otherwise respond to
the motion. In dismissing the complaint, the AJ noted that complainant
failed to establish standing as an applicant for federal employment and
adopted the agency's conclusions in the agency's motion to dismiss.
On appeal, complainant asserts that she applied to the agency's
Transportation Security Agency via the internet and completed the SF 85P.
She further asserts that the application stated that it was equivalent to
Standard Form 85P, Questionnaire for Public Trust Positions. Complainant
also states that the SF 85P form indicated that the federal government
would conduct the investigations to establish that applicants working
for the government under contract were suitable for the job and eligible
for a public trust position or a sensitive position.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complainant from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by the agency because of race, color, religion,
sex, national origin, age or disabling condition. See 29 C.F.R. ��
1614.103, .106(a). Accordingly, a complaint may be dismissed for
failure to state a claim when the complainant is not an employee or
applicant for employment with the federal government.
The Commission has applied the common law of agency test to determine
whether complainants are agency employee under laws enforced by
the EEOC. See Ma v. Department of Health and Human Services,
EEOC Appeal No. 01962390 (June 1, 1998) (citing Nationwide Mutual
Insurance Co. 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 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 id.
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. 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.
The Commission's Enforcement Guidance: Application of EEO Laws to
Contingent Workers Placed by Temporary Employment Agencies and Other
Staffing Firms, EEOC Notice No. 915.002 (Dec. 3, 1997)(hereinafter,
Guidance), addresses the application of Title VII of the Civil Rights
Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA),
the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) to
individuals placed in job assignments by temporary employment agencies and
other staffing firms, i.e., "contingent workers." The term "contingent
workers" generally refers to workers who are outside an employer's
"core" work force, such as those whose jobs are structured to last only a
limited period of time, are sporadic, or differ in any way from the norm
of full-time, long-term employment. Contingent workers may be hired by
"staffing firms" which may include a temporary employment agency or a
contract firm. See Guidance. Regarding contract firms, the Guidance
notes that under a variety of arrangements, a firm may contract with a
client to perform a certain service on a long-term basis and place its own
employees, including supervisors, at the client's work site to carry out
the service. Id. Examples of contract firm services include security,
landscaping, janitorial, data processing, and cafeteria services. Id.
The Guidance also notes that like a temporary employment agency, a
contract firm typically recruits, screens, hires, and sometimes trains
its workers. Id. The contract firm sets and pays the wages when the
worker is placed in a job assignment, withholds taxes and social security,
and provides workers' compensation coverage. Id. The primary difference
between a temporary agency and a contract firm is that a contract firm
takes on full operational responsibility for performing an ongoing
service and supervises its workers at the client's work site. Id.
In the Guidance, we also recognize that a joint employment relationship
may exist where both the agency and the staffing firm may be deemed
employers. Id. A determination of joint employment requires an
assessment of the comparative amount and type of control the "staffing
firm," and the agency each maintain over complainant's work. Id. Thus,
a federal agency will qualify as a joint employer of an individual if
it has the requisite means and manner of control over the individual's
work under the Ma criteria, whether or not the individual is on the
federal payroll. Id.
The Aviation and Transportation Security Act (ATSA) created the
Transportation Security Agency to recruit and hire federal employees to
provide for the security screening of passengers and cargo at domestic
commercial airports. The record reveals that ATSA also authorized a
pilot program for private screening companies, whereby private non-federal
employees would serve as security screeners at five airports, including
San Francisco International Airport (SFO). The express purpose of the
pilot program was to hire, private, non-Federal employees to study the
feasibility of using private sector versus Federal employees as screeners.
The record reveals that Covenant Aviation Security (Covenant) was
a private contract screening company that successfully bid for SFO.
The record also discloses that Covenant was to hire, employ, and supervise
all SFO screeners. The record further discloses that the contract with
Covenant provided, among other things, that Covenant furnish all labor,
supervision, management, facilities, equipment, materials, and services
necessary to operate, manage, train, and maintain a screening workforce
at SFO. The record also discloses that Covenant had to meet the ATSA
mandated qualification standards applicable to federal screeners and
pass an assessment battery. The record also discloses that Covenant
made the final selections from successful candidates who satisfied the
qualification standards and passed the tests.
Under the circumstances of this case, we find that complainant was
not an applicant for employment with the agency, either solely or
jointly with Covenant, a private screening company, and therefore
has no standing in this matter. Because complainant was an applicant
for a screener position at SFO for which Covenant held the contract,
complainant was an applicant for employment with Covenant and not an
applicant for federal employment. See Ma, EEOC Appeal No. 01962390.
Moreover, ATSA specifically provided that the security screeners were
to be considered non-federal employees and part of a pilot program.
We find that complainant was a contingent worker or similar to a
contingent worker because her job was part of a pilot program which
would last only a limited period of time. The Commission also finds that
although Covenant had to meet the ATSA mandated qualification standards
applicable to federal screeners and pass an assessment battery, Covenant
made the final selections. Requiring satisfaction of federal mandates
did not transform applicants to Covenant into employees of the agency.
See Powell v. Department of the Army, EEOC Request No. 05930076 (August
2, 1993) (agency not an employer although it provided licensing and
certification functions for family child care providers and set safety
prerequisites for care providers). In addition, although complainant
may have used federal application forms and assessment notifications,
this process was part of ATSA's requirements for the pilot program and
were, in any event, minor.
Employing the common law agency test, we find that complainant was an
applicant for employment with Covenant. The record reveals that Covenant
had the right to control the "means and manner" of the performance of
security screeners at SFO. Complainant, had she been hired, would not
have been in a federal government position or on its payroll. She also
would not have been supervised, appraised, disciplined or fired by agency
managers. Complainant would not have had Social Security contributions
paid for by the agency and she would not have received federal insurance,
leave, workers' compensation or retirement benefits.
Accordingly, the agency's decision dismissing the complaint for failure
to state a claim is AFFIRMED.
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
May 31, 2005
__________________
Date