0120083564
01-22-2009
Fereydoun Shariat, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Agency.
Fereydoun Shariat,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Agency.
Appeal No. 0120083564
Agency No. OCR-08-04
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 8, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant worked as an independent
contractor/Purchase Order Vendor for the agency's West and South Asia
Division of the Voice of America, Broadcasting Board of Governors in
Washington D.C.
On September 5, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On October 31, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of national origin (Iranian) and age (63) when:
1. on October 24, 2002, he learned that he was not selected for the
position of International Radio Broadcaster, GS-1001-12, advertised
under Vacancy Announcement No. M/P-02-137;
2. on January 7, 2003, he learned that he was not selected for the
position of International Radio Broadcaster (Arabic), GS-1001-12,
advertised under Vacancy Announcement No. M/P-02-178A;
3. on November 5, 2003, he learned that he was not selected for the
position of International Radio Broadcaster (Persian), within Radio Farda,
GS-1001-12, advertised under Vacancy Announcement No. M/P-03-82;
4. on January 10, 2004, he learned that he was not selected for the
position of International Radio Broadcaster (Persian), GS-1001-12,
advertised under Vacancy Announcement No. M/P-03-106;
5. on June 23, 2004, he learned that he was not selected for the position
of International Radio Broadcaster (Persian), GS-1001-12, advertised
under Vacancy Announcement No. M/P-04-36;
6. on September 1, 2007, he learned that he was not selected for the
position of International Radio Broadcaster (Persian), GS-1001-12,
advertised under Vacancy Announcement No. M/P-07-66;
7. on October 18, 2002, he learned that he was not selected for the
position of Director, Middle East Program Center, GS-1001-15, advertised
under Vacancy Announcement No. M/P-02-146;
8. on December 24, 2002, he learned that he was not selected for the
position of International Radio Broadcaster (Arabic), GS-1001-12,
advertised under Vacancy Announcement No. M/P-02-177A;
9. on June 7, 2005, he learned that he was not selected for the position
of International Radio Broadcaster (Persian), GS-1001-12, advertised
under Vacancy Announcement No. M/P-05-59;
10. on June 29, 2005, he learned that he was not selected for the position
of International Broadcaster (Persian), GS-1001-12, advertised under
Vacancy Announcement No. M/P-05-89;
11. on January 14, 2007, he learned that he was not selected for the
position of International Broadcaster, GS-1001-12/12, advertised under
Vacancy Announcement No. M/P-07-147;
12. he is not being paid equally for work he is performing that is
equivalent or more difficult than work for which others are being paid
at higher rates; and
13. he works for every hour he is paid for but others within the Persian
News network are working one to three hours per day and are being paid
for eight hours of work.
In its July 7, 2008 final decision, the agency dismissed claims 1-5
and 7-10 on the grounds of untimely EEO Counselor contact, pursuant to
29 C.F.R. � 1614.107(a)(2). The agency determined that complainant's
initial EEO Counselor contact occurred on September 5, 2007, which it
found to be beyond the 45-day limitation period. The agency dismissed
claims 12-13 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim finding that complainant was not an employee of the agency.
The agency found that complainant was, instead, an independent contractor
not covered by Title VII.
With respect to claims 6 and 11, the agency found no discrimination,
noting that complainant had requested a final agency decision without a
hearing. The agency found that complainant failed to establish a prima
facie case of national origin and age discrimination. The agency found
that assuming arguendo complainant established a prima facie case,
management articulated legitimate, nondiscriminatory reasons for not
selecting complainant for the subject positions, namely, the selectees
were more qualified and had more experience in the broadcasting field.
The agency further found that complainant failed to demonstrate that
management's articulated reasons for not selecting him were a pretext
to mask discrimination.
Claims 1-5 and 7-10
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant first contacted an EEO Counselor on September 5, 2007,
approximately four and a half years after the alleged discrimination
began. The alleged discriminatory events occurred between October 18,
2002 and June 29, 2005, but complainant did not initiate contact with an
EEO Counselor until September 5, 2007, which was beyond the forty-five
(45) day limitation period. The Commission has consistently held that a
complainant must act with due diligence in the pursuit of his claims or
the doctrine of laches may apply. See O'Dell v. Department of Health
and Human Services, EEOC Request No. 05901130 (December 27, 1990).
The doctrine of laches is an equitable remedy under which an individual's
failure to pursue diligently a course of action could bar his claim.
Therefore, we find that the agency properly dismissed claims 1-5 and
7-10 on the grounds of untimely EEO Counselor contact.
Claims 12-13
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See 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, 323-24 (1992)). Specifically, the Commission will look
to the following non-exhaustive list of factors: (1) the extend 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
particulate 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 of 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. 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 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance"), we have also recognized that
a "joint employment" relationship may exist where both the agency and the
"staffing firm" may be deemed employers. 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 Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Under this test, the Commission, after balancing many factors, finds
that complainant was not an employee of the agency. The record contains
four documents identified as "Amendment of Solicitation/Modification of
Contract," dated April 2, 2008 (Contract No. BBGCON5805C5750). Therein,
the contract states that complainant would provide translation services
by translating from English to Farsi from September 1, 2007 to August 31,
2008.
The record further contains a memorandum from the Director of Persian News
Network (D1) concerning complainant's status as an independent contractor.
Therein, the D1 stated that complainant has provided contractual
translation services for the agency since 2002. D1 stated that
complainant "is paid by the job according to the prescribed rate schedule.
Under the U.S. Prompt Payment Act, [complainant] is compensated after
submitting invoices detailing each particular transaction assignment he
has completed." D1 stated "the agency provides no benefits (sick/annual
leave) to [complainant]. During periods when the contractor is absent,
he receives no compensation." D1 also stated that complainant does
not receive any federal retirement benefits from the agency. D1 stated
"the agency does not withhold federal, state or social security taxes,
and does not make any withholdings from its contractual remunerations.
Thus, the contractor is responsible for paying his income and social
security taxes."
Moreover, the record reflects that the payment is made for work after
submission of an invoice. No leave is afforded. There are no retirement
benefits and the agency does not pay social security taxes. Finally,
the contract between complainant and the agency expressly indicates that
complainant is an independent contractor which indicates that the parties
did not intend an employment relationship. Therefore, we find that the
agency properly dismissed claims 12-13 for failure to state a claim.
Claims 6 and 11
The record reflects that in regard to position of International
Radio Broadcaster (Persian), GS-1001-12, advertised under Vacancy
Announcement No. M/P-07-66 (claim 6), there were multiple vacancies,
and nine candidates were selected for the subject positions. The record
further reflects that five out of nine candidates chosen for the subject
positions were over forty at the time of their selection. The record
reflects that complainant was not on the certificate of best qualified
referred to the selecting official for the position of International
Broadcaster, GS-1001-12/12, advertised under Vacancy Announcement
No. M/P-05-89 (claim 11).
The record contains a copy of the D1's affidavit. Therein, D1 stated
that she was the concurring official for the positions of International
Radio Broadcaster (claim 6) and International Broadcaster (claim 11).
D1 further stated "when we were producing all or mostly radio broadcasts,
the Persian Service was staffed mostly with translators. Because of
the change to television, we need broadcasters who gather news, report
from the field, report from the studio and anchor television programs."
Specifically, D1 stated that the agency needed employees with strong
commercial and cable TV production skills, and "we hired people with
recent experience in U.S. television markets, such as ABC News, MSNBC,
etc."
D1 stated that complainant was not selected for the two subject
positions because he was not considered best qualified. D1 stated that
complainant's experience "is in diplomacy and translating, and we have
the utmost respect for him. He is a great translator, and we contract
with him for translating services. In the last few years, however,
we have been advertising for and hiring international broadcasters.
[Complainant] has never been a journalist and has no experience in
reporting or on-air broadcasting." Furthermore, D1 stated that she did
not discriminate against complainant based on his national origin or age.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not prove,
by a preponderance of the evidence, were a pretext for discrimination.
Therefore, we find that the agency properly found no discrimination
concerning claims 6 and 11 because the preponderance of the evidence of
record does not establish that discrimination occurred.
In summary, the Commission AFFIRMS the agency's dismissal of claims 1-5,
7-10 and 12-13, as well as the finding of no discrimination as to claims
6 and 11.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 22, 2009
__________________
Date
2
0120083564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
0120083564