Gerald W. Hammock, and Doris C. Chaney, Complainants,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01a02271 (E.E.O.C. Jul. 17, 2000)

01a02271

07-17-2000

Gerald W. Hammock, and Doris C. Chaney, Complainants, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Gerald W. Hammock, )

and )

Doris C. Chaney, )

Complainants, )

)

v. ) Appeal Nos. 01A02271

) 01A02273

Craven H. Crowell, Jr., ) Agency Nos. 0830-99033

Chairman, ) 0903-99035

Tennessee Valley Authority, )

Agency. )

____________________________________)

DECISION

On August 27, 1999, Gerald W. Hammock (complainant-1) and Doris

C. Chaney (complainant-2) each filed a formal complaint of employment

discrimination, alleging violations of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Both complaints alleged harm from G-UB-MK Constructor's (hereinafter

�Contractor's�) termination of their employment on June 4, 1999,

while they were working at an agency facility. On December 15, 1999,

the agency dismissed both complaints in separate but identical final

decisions. The complainants, represented by the same attorney, filed

timely appeals to this Commission on January 14, 2000. The Commission

accepts the timely appeals for review, and consolidates them pursuant to

its discretion under 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified

as 29 C.F.R. � 1614.606).<1>

In its final decisions, the agency dismissed the complaints for failure

to state a claim. Specifically, the agency found that both complainants,

journeyman machinists working at the Power Shop Service (PSS) operating

machinery necessary to rebuild and repair generators, were independent

contractors, not agency employees entitled to protection in the federal

EEO process. The agency cited several grounds for its findings, namely:

Contractor employed complainants; Contractor paid complainants' salaries;

Contractor paid complainants' social security taxes and withholding;

complainants did not accrue annual leave or federal benefits through

the agency; and the union paid complainants' retirement benefits, not

the agency. The agency explained that an agreement between Contractor

and the agency controlled the agency's relationship to complainants.

This agreement explicitly stated that Contractor would be responsible for

�remov[ing] from the job site any personnel of CONTRACTOR determined to

be unfit for performance of his or her assigned duties or to be acting or

working in violation of job site work rules.� The agreement also provided

that �CONTRACTOR agrees to act as an independent contractor and shall

act as an independent contractor and not as the agent of the TVA . . . .�

On appeal, complainants argue that they were employees provided

by Contractor to �augment� the agency's staff. They contend that

the agency chose who to hire, and who to lay-off. According to

complainants, agency management supervised them, supplied their tools,

controlled their time-off, and evaluated their work performance.

Complainants worked side-by-side with machinists employed directly by

the agency. Complainants assert that Contractor's only relationship to

the complainants involved administrative oversight to maintain personnel

and payroll records.

In response, the agency asserts that Contractor, not the agency, had

the authority to hire and terminate complainants. It argues that its

input into hirings was restricted to requesting a specified number of

individuals trained in a particular craft -- Contractor assigned the

employees to fill the agency request. The agency admits to �technical

supervision� of complainants, but contends Contractor remained the

�administrative� supervisor. According to the agency, it informed

Contractor in June 1999, that it no longer needed twenty-nine machinists

with specific skills, because their work was completed. Thirty-two other

machinists were retained until June 21, 1999. The agency argues that

it released the machinists to Contractor, and that Contractor decided

to terminate them. The agency speculates that Contractor could have

placed complainants in other positions rather than terminate them.

The record includes a copy of the agreement between Contractor and the

agency, with amendments attached. With regard to �staff augmentation,�

the agreement, in section GC-4, provides:

CONTRACTOR will be provided a written request for a proposal which will

typically include:

a. A general scope of work and the location at which it is to be

performed.

b. The planned starting and ending dates for the work.

c. A listing of the types and numbers of personnel required.

The agreement (Section GC-15 Support Personnel (Staff Augmentation))

also notes that, � [The agency] will advise Contractor furnished [sic]

support personnel of [the agency's] specific rules, regulations, and

safety procedures that will apply to the personnel's specific work

activities as defined by [the agency].�

Further requirements were set forth under the heading �Assignment of

Contractor's Personnel�:

Each of CONTRACTOR'S employees assigned to . . . an [agency] facility

shall meet the citizenship requirements applicable to [agency] employees

and shall be required to undergo such medical examination and security

investigation, and comply with such fitness for duty requirements,

including drug and alcohol testing, as [the agency] may require. The cost

and performance of these programs for medical examination, security

examination, and fitness for duty requirements shall be performed by

[the agency] . . . .

Amendment 9 changed the agreement with respect to drug testing, requiring

Contractor to establish a system to test the workers, which �shall be

reimbursed by [the agency].�

The agreement (Section GC-15) also detailed the parameters of the working

relationship between the agency and the staff-augmenting workers:

All work activities of CONTRACTOR furnished [sic] support personnel

shall be performed under the direction, supervision, and control of

[the agency], and [the agency] shall be responsible for requests and

directions issued by employees of [the agency] to CONTRACTOR'S employees

. . . . However, CONTRACTOR'S . . . employees providing support service

to [the agency] . . . shall continue as CONTRACTOR'S . . . employees,

and shall not become employees of [the agency]. . . . [The agency]

shall be responsible for providing appropriate working space and

support facilities for support personnel that are comparable to those

provided to [agency] employees. CONTRACTOR'S representatives shall have

reasonable opportunities to meet and communicate with support personnel

for administrative purposes.

Concerning payment of staff augmentation employees, �Contractor, who

is the employer, shall be responsible for the payment of the employees'

salaries or wages, payroll taxes, and employee benefits.� The agreement

also explained payments to Contractor for craft labor staff augmentation

(Section GC-36 Compenstation), �CONTRACTOR will be paid for actual costs

of wages and payroll taxes incurred in completion of work as required

by the agreement. . . .� The contractor also received an �Award Fee�

for each worker placed in staff-augmentation.

The record reveals that complainant-2 worked staff-augmentation craft

labor intermittently from 1994 through 1998. Specifically, she worked

from March 29, 1994 to June 3, 1994; September 21, 1994 to March 1,

1995; March 22, 1995 to November 17, 1995; February 28, 1996 to May 28,

1996; September 10, 1996 to November 5, 1996; March 3, 1997 to June 18,

1997; August 26, 1997 to December 16, 1997; March 23, 1998 to April 16,

1998; and June 5, 1998 to July 5, 1999. Both complainants had been

working steadily for approximately a year when they were terminated.

Complainant-1 worked steadily from July 9, 1998 until July 5, 1999.

He also worked for the agency from November 17, 1997 to December 2,

1997 and March 26, 1998 to April 10, 1998.

ANALYSIS AND FINDINGS

The ADEA allows claims against federal agencies by agency employees or

applicants for employment, but does not expressly prohibit discrimination

by federal agencies against independent contractors. See 29 U.S.C. 633(a)

(1999). Claims against agencies made by independent contractors fail

to state a claim. See Mallory v. Environmental Protection Agency, EEOC

Request No. 05950142 (April 12, 1996). Thus, before the Commission or

the agency can consider whether the agency has discriminated against

complainant in violation of the ADEA, it must determine whether

complainant is an agency employee or applicant for employment.

The Commission has applied the common law of agency test to determine

whether complainants are agency employees 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)). This same test applies to claims brought

under the ADEA. 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 is usually 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 v. Department of Health and Human Services, 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., (citations omitted).

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 has found that an agency with the authority to supervise,

hire, set shift/overtime hours, discipline, lay-off, and/or terminate an

individual has employed that person even though a private corporation

issues paychecks and performs bookkeeping duties. See Stone v,

Tennessee Valley Authority, EEOC Appeal No. 01965608 (July 28, 1997)

(citing Spirides v. Reinhart, supra). An individual whom the agency

supervises, subjects to workplace rules/guidelines, and allows to use

agency facilities and equipment is an employee of the agency even though

a private corporation may provide all benefits, issue the individual's

paychecks, and deduct all social security and payroll taxes. See Tucker

v. United States Postal Service, EEOC Appeal No. 01975224 (April 6,

1998); see also Scott v. Department of Education, EEOC Appeal No. 01984578

(November 23, 1999) req. to recons. pending, EEOC Request No. 05A00268.

In such circumstances, the employer-employee relationship exists although

the agency did not fire the individual, but merely informed the contractor

of her irregular attendance. See Tucker v. United States Postal Service,

supra.

In the present case, the agency held complete control over the manner and

means of complainants' work performance. Complainants were supervised

by agency employees, subjected to agency employment rules, and evaluated

by agency management. Further, they worked alongside regular agency

employees performing the same or similar tasks, had access to agency

facilities comparable to those given to regular employees, and used agency

tools and equipment in the performance of their jobs. The agency also

released complainants from their employment with the agency, although

it is unclear whether the agency chose which individual machinists

to lay-off. Additionally, the agreement provided for the agency to

pay Contractor all salary and payroll taxes of its workers, and for

Contractor to record, process, and distribute the paychecks. The work

complainants were completing involved repairing and constructing power

generation equipment -- generating power is an integral agency duty.

Therefore, complainants, under the present circumstances, were employees

of the agency, entitled to protection under the federal EEO process.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the claims are

REMANDED for further investigation.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

July 17, 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 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.