0120062274
02-08-2007
Derrick D. Murry, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Derrick D. Murry,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200622741
Agency No. ARRUCKER05NOV11
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 24, 2006, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (African-American) when his authorization to
operate aircraft belonging to the Army Aviation Technical Test Center
was permanently revoked.
The agency dismissed complainant's complaint pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,
the agency determined that complainant was an employee of the contractor
and not an agency employee entitled to pursue her claim through the
federal EEO process. Complainant filed the instant appeal.
The record shows that complainant is employed by Army Fleet Support, LLC
(AFS), a contractor hired by the agency to provide services pursuant
to Contract #DAAH23-03-C-0345. Complainant asserts, however, that he
is a de facto employee of the agency because the agency has the right to
control and direct the individuals performing services under the contract.
Complainant argues that he is an employee because she is subject to the
will and control of the agency as to what work will be done and how the
work will be done. In addition, complainant contends that the fact
that the agency had absolute control over issuing or removing flight
authorization to contractor employees renders complainant an employee
of the agency entitled to pursue the EEO process.
In deciding this case, the Commission must determine whether the
complainant was an agency employee or applicant for employment within the
meaning of Section 717(a) of Title VII of the Civil Rights Act of 1964,
an amended, 42 U.S.C. 2000e-16(a) et. seq. The Commission has applied
the common law of agency test to determine whether an individual is
an agency employee under Title VII. See Ma v. Department of Health
and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29,
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 Ma, 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.
Furthermore, under 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 (December 3, 1997)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may
exist where both the agency and the "staffing firm" may be deemed
employers.2 Similar to the analysis set forth above, 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. 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. See Guidance, supra at 11.
Based on the legal standards and criteria set for herein, we find that
the agency did not exercise sufficient control over the complainant's
position to qualify as the employer or joint employer of complainant.
See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006). In reaching this conclusion we note that complainant
remains an employee of AFS in spite of the agency's removal of her flight
authorization, which is the subject of his complaint. Accordingly,
we find that the agency's dismissal was appropriate and we AFFIRM the
agency's final decision.
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
February 8, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 Contingent workers generally refer 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, supra at 1 & 3.
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0120062274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120062274