01995149
10-13-2000
Deborah A. Settles v. Tennessee Valley Authority 01995149 October 13, 2000 . Deborah A Settles, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Deborah A. Settles v. Tennessee Valley Authority
01995149
October 13, 2000
.
Deborah A Settles,
Complainant,
v.
Craven H. Crowell, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01995149
Agency No. 0808-97188
DECISION
Upon review, the Commission finds that the agency's decision dated May 7,
1999, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1).<1> In her complaint,
complainant, a contract employee with Stone and Webster Construction
Company (SWCC), alleged that in May 1997, when she was working as
a Firewatch Laborer, she was sexually harassed by an agency Foreman
and was transferred to Modifications at the Sequoyah Nuclear Plant.
On December 11, 1997, the agency previously dismissed the complaint for
failure to state a claim. Upon complainant's appeal, the Commission,
in Appeal No. 01982199 (February 11, 1999), previously vacated the
agency's decision and remanded the complaint for a supplemental
investigation. Specifically, the agency was ordered to conduct
a supplemental investigation to determine whether complainant may be
deemed an employee under Title VII in light of the factors set forth in
Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979).
The supplemental investigation reflects that at the time of the
alleged incidents, complainant was not employed by an agency, but
by SWCC. The record indicates that SWCC made employment decisions,
including work assignments and termination of employment. The SWCC was
responsible for the payment of complainant's salary, payroll taxes, and
employment benefits. The agency did not provide complainant with annual
leave, retirement benefits, or social security taxes. Furthermore,
the record indicates that the duties of a Firewatch Laborer required
a set route to walk every shift to watch and check for signs of fire.
An agency employee/Foreman only provided general direction including
the route to be walked and the times thereof. Based on the foregoing,
the Commission finds that complainant was not an agency employee and was
not an aggrieved employee. See 29 C.F.R. � 1614.103; 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. 218, 323-24
(1992)). Thus, the Commission finds that the complaint fails to state
a claim within the purview of the regulations.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
October 13, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.