01996039
12-19-2000
H. Douglas Hamilton II, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
H. Douglas Hamilton II v. Department of the Navy
01996039
December 19, 2000
.
H. Douglas Hamilton II,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01996039
Agency No. DON-99-68057-051
DECISION
On March 9, 1999, complainant sought counseling concerning his claim
that the agency subjected him to unlawful discrimination.<1> The agency
characterized complainant's complaint as alleging that he was subjected
to discrimination on the bases of race (Caucasian), color (white),
disability, and in reprisal for prior EEO activity when:
In April 1997, complainant's supervisor (S1) threatened to remove
complainant from a project for incompetence based on lies about his
conduct and performance;
In May 1998, S1 lied about knowing that complainant had a disability
and questioned his ability to perform due to his illness and absences;
In December 1998, S1 falsely accused complainant of insubordination
and threatened to dismiss him for incompetence; and
In January 1999, complainant was denied public recognition and promised
awards for job accomplishments.
In a final decision dated July 21, 1999, the agency dismissed the
complaint as moot, and in the alternative, dismissed claims (1) and
(2) for untimely EEO counselor contact. In an untimely supplemental
response in opposition to complainant's appeal, the agency asserted
for the first time that dismissal of the instant complaint is proper
for failure to state a claim, as complainant is not an employee of the
agency, but is instead an employee of an independent company performing
under a contract with the agency.
The Commission notes that in complainant's statement in support of his
appeal, he identifies himself "as an employee of a private employer."
Moreover, in his formal complaint, complainant identifies "[t]he Company
who owns me" as the independent company performing under contract with
the agency.
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. 0 1962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 218, 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 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, were
not appreciably different from the common law of agency test. See id.
In the present case, complainant acknowledges that he is "an employee of a
private employer." Moreover, there is significant evidence in the record
indicating that complainant was hired and paid by the private employer,
and was under contract with the agency. Although the Commission as a
rule does not rely on submissions from the party that are submitted after
thirty days have passed since the appeal was filed, in this case it is
clear that complainant is not an employee of the agency, and that he is
therefore not covered by the regulations found at 29 C.F.R. Part 1614.
However, the Commission further notes that in the narrative attached to
complainant's formal complaint, complainant claimed that he was denied
employment with the agency as a result of unlawful discrimination.
Specifically, complainant alleged that in May 1998, a job posting was
to be listed for which he was encouraged to apply. Complainant further
alleged that after S1 learned of complainant's eminent "conversion to
the government side" the position was never made available.
The record is clear that complainant was working as an independent
contractor at the time during which he was subjected to the alleged
discrimination identified above. However, for the purposes of his
claim that he was denied a permanent position with the agency because of
discriminatory reasons, complainant's status became that of an applicant
for employment. As such, for this claim complainant is covered by the
EEOC regulations. The Commission notes that the agency failed to address
complainant's claim concerning the denial of a permanent position
with the agency, and the Commission deems the agency's action to be
tantamount to a dismissal of that matter. Complainant's submissions
on appeal reveal that complainant clearly referenced the matter in his
formal complaint. Accordingly, we find that the agency's dismissal of
this claim was improper.
Accordingly, the agency's dismissal of all of the claims in complainant's
complaint which arose during his employment as an independent contractor
with the agency is hereby AFFIRMED for the reasons set forth herein.
The agency's dismissal of complainant's claim concerning the denial of
a permanent position with the agency is hereby REVERSED. That claim is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K0900)
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 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 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
December 19, 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.