01A12597_r
06-29-2001
Imelda Tovar, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Imelda Tovar v. Department of the Army,
01A12597
June 29, 2001
.
Imelda Tovar,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A12597
Agency No. BHAAFO0101B0110
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her 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. The final agency decision was
dated January 17, 2001. The complainant's appeal was filed on February
14, 2001.
The record indicates that on December 5, 2000, complainant contacted the
EEO Counselor regarding claims of sexual harassment. Informal efforts
to resolve complainant's claim were unsuccessful. On December 21, 2000,
complainant filed a formal complaint alleging that she was sexually
harassed by an agency employee.
The agency issued a final decision on January 17, 2001 dismissing
the complaint for failure to state a claim. Specifically, the agency
determined that, for the purposes of Title VII, the complainant is not
a government employee or an applicant for employment. The agency found
that the complainant is employed by and under the direct control of an
entity identified as LSI, an independent contractor.
In the final decision, the agency determined that complainant is not
covered by Title VII as her �..duties are under the direct supervision
and control of an independent contractor.� The agency found that the
independent contractor directs complainant's daily activities and is
solely responsible for hiring, removal or disciplinary actions involving
the complainant.
The Commission has applied the common law of agency test to determine
whether a 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 looks 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 accumulated retirement benefits; (11)
whether the �employer� pays social security taxes; and (12) the intention
of the parties. See Ma v. Department of Heath and Human Services, supra.
According to �Factors for Consideration', a questionnaire completed by
the agency's Supervisory Production Controller, the agency establishes
complainant's working hours and the duration of the job and is able to
assign additional work. The agency also provides complainant with work
space, equipment and tools. The agency does not withhold social security
or other taxes from the complainant's compensation.
The record indicates however that the independent contractor is the
primary supervisor of complainant. LSI gives complainant assignments;
performance evaluations; and provides an on-site supervisor. LSI
directs the hiring, removal and discipline of complainant. Complainant
is considered an employee of LSI for tax purposes, salary and rate of
pay. The contractor also provides complainant with insurance benefits,
leave and workers compensation.
In her complaint, complainant acknowledges an employer-employee
relationship between herself and LSI. In complainant's attachment to
the formal complaint, she refers to herself and other workers as �the
contractors' and relates an incident involving �the contractors' and an
agency employee.
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). Upon
review of evidence, the record indicates that the complainant is not
an agency employee under the purview of the Commission's regulations.
Accordingly, the agency's final decision dismissing complainant's
complaint is 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
June 29, 2001
__________________
Date