01990840
01-12-2000
Darrell James Monette, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Darrell James Monette, )
Complainant, )
)
v. ) Appeal No. 01990840
) Agency No. BIA-98-063
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
On November 5, 1998, complainant filed an appeal with this Commission from
a final agency decision (FAD) dated September 30, 1998, pertaining to his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted as timely in accordance with EEOC Order No. 960,
as amended.<2>
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Native American) when on July 28,
1997, at an Anchor Seven Cattle Association Meeting, the Supervisory
Range Conservationist verbally assaulted complainant by threatening
to kill him. The agency dismissed the complaint for failure to state
a claim. Specifically, the agency found that complainant was an employee
of the San Carlos Apache Tribe, but was not an employee or applicant
for employment of the federal government. The agency explained that the
tribe, not the agency, held the responsibility to pay complainant, and
the right to control his actions in employment. Because complainant
was not an employee or applicant for employment with the agency, it found
that complainant was not covered by Title VII or EEOC Regulations.
On appeal, complainant admits that he was employed by the San Carlos
Apache Tribe when the incident occurred. Complainant argues, however,
that his ultimate goal was to be employed by the agency, and that
he has applied for agency positions since November 1997. Further,
complainant contends that he has secured employment with the agency, to
begin December 7, 1998, but not within the San Carlos District because
of his altercation with the Supervisory Range Conservationist.
In response, the agency reiterated that complainant was an employee of
the tribe, not the agency, at the time he filed his complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against by
that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
22, 1994).
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. See Zheng v. Department of Health and
Human Services, EEOC Appeal No. 01962389 (June 1, 1998) (providing
non-exhaustive list of factors including the extent of the employer's
right to control the means and manner of work performance, and the
method of payment); 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, complainant admits that he was not employed with
the agency at the time the incident occurred. He does not deny that
the tribe paid his salary and controlled his work performance. Further,
complainant admits that he did not apply for employment with the agency
until November 1997, approximately four months after the alleged incident
occurred. Complainant does not argue, and it does not appear that his
position with the San Carlos Apache Tribe rendered him, in effect, an
employee of the federal government. Therefore, complainant was not an
employee or applicant for employment at the time the incident occurred.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 12, 2000
____________________________
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 Equal Employment Assistant 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.
2The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date complainant
received the agency's dismissal, final action or decision. Accordingly,
since the agency failed to submit evidence of the date of receipt, the
Commission presumes that complainant's appeal was filed within thirty (30)
days of receipt of the agency's dismissal. See, 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.402).