0120103751
01-11-2012
Inna Dubovik-Sileo, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Inna Dubovik-Sileo,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120103751
Agency No. FBI-2010-00176
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 30, 2010, dismissing her complaint of unlawful employment discrimination. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Linguist at the Agency's Miami Division. On June 11, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis in reprisal for prior protected EEO activity when on March 9, 2010, Complainant was advised that her contract work order with the Agency's Miami Division had been cancelled.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that Complainant was an independent contractor and not an employee of the Agency for purposes of Title VII. The Agency stated that Complainant began her assignment as a Contract Linguist with the Agency in 2000. The Agency noted that the relationship with the Agency is documented in a Basic Ordering Agreement (BOA), which the Agency characterizes as a written instrument of understanding negotiated between an agency and a contractor. The Agency noted that Complainant performed the contract linguist assignment, using Agency supplies and equipment, subject to Agency ethical standards and procedures. However, the Agency stated that Complainant's Participating Agency was responsible for her pay, overtime, leave, performance appraisals, travel approval, and other personnel matters relating to Complainant as a contract linguist. The Agency stated that Complainant's Participating Agency also acknowledged financial and civil liability, if any, for the acts and omissions of Complainant, as an employee detailed to the Agency, remained vested with her Participating Agency.
On appeal, Complainant states she has not received an official letter from the Agency's Language Services with notification that her contract/BOA will not be renewed, nor has she received any explanations why such decision was made. Complainant claims that the Agency is still advertising for employees to work in Russian and Ukrainian, the two languages she worked with while serving as a Contract Linguist. Additionally, Complainant claims that she has standing to pursue the present complaint as a "Job Applicant" per the 2004 Changes to the EEOC-Uniform Guidelines and Employee Selection Process. Specifically, she states that she has made applications for full-time employment with the Agency.
In response to Complainant's appeal, the Agency requests the Commission uphold its final decision dismissing Complainant's complaint for failure to state a claim. With regard to Complainant's claim that she has standing to file the present complaint as a "Job Applicant," the Agency notes that the alleged actions that form the basis of the present complaint relate to Complainant's status as a "Contract Linguist." The Agency argues Complainant has not alleged any discriminatory actions with respect to her application for full-time employment with the Agency.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a).
The Commission agrees that the instant matter fails to state a claim under EEOC regulations. Before the Commission can consider whether an agency has discriminated against a complainant in violation of Title VII, we must first 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. Dep't 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. Id. 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.
The record contains a copy of the BOA, signed October 22, 2009, by Complainant and the Agency. The BOA states, in pertinent part:
The Basic Ordering Agreement (BOA) . . . is a written instrument of understanding negotiated between an Agency, who is the customer, and a service provider.
The BOA is NOT a contract.
The BOA does not state or imply any agreement by the [Agency] or other entities for which it serves as Executive Agent, to place future orders with the Contractor.
The BOA does not state or imply that the contractor shall provide services for a guaranteed number of hours. Hours worked shall be based on the needs of the [Agency] and the availability of funds in conjunction with a Contractor's availability.
The BOA contains:
(a) Terms and clauses applying to future orders between the parties during its term;
(b) A description, as specific as practicable, of the services to be provided;
(c) Methods for pricing, issuing, and delivering future orders during the term of the BOA.
This BOA is a labor-hour agreement, and provides for acquiring services on the basis of direct labor hours at specified hourly rates that includes wages.
Contractors are NOT Federal Government employees. Contractors are service providers to the Government under terms deemed mutually satisfactory.
This BOA may be cancelled in its entirety by either party upon 30 days written notice to the other party.
The BOA reveals that Complainant operated under the day-to-day oversight of a Government-designated representative who provided her work assignments, monitored performance, productivity, and ensured compliance with Government mandated policies and procedures. Complainant's duties included providing translation; providing monitoring services; providing assistance to Agency Special Agents and other personnel in interrogations, interviews and conversational exchanges; performing quality control reviews based on Agency Quality Control policy; performing foreign language teaching services related to the needs of Agency linguists in classroom settings and through video teleconferencing; and providing limited administrative duties. According to the BOA there was no guarantee to the amount of work available and the record reveals that in 2001 Complainant worked an average of 125 hours per month. Complainant was required to submit an invoice each month in order to receive payment for the work done that month. The Agency paid Complainant at a fixed hourly rate each month and there was an annual ceiling for pay for Complainant's work. In the present case, Complainant does not claim that the Agency provided her with annual leave, sick leave, medical insurance, life insurance, or retirement benefits that it provides for its employees.
Upon review, we find the Agency did not exercise sufficient control over Complainant's position to qualify as the employer of Complainant. See generally, Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). With regard to her contention that she was covered under Title VII as an applicant for employment, we find that the present complaint does not contain an allegation that Complainant was subjected to discrimination in relationship to her application for full-time employment with the Agency. Rather, the present Complainant only concerns her claim that she was subjected to discrimination when her contract work order was cancelled.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 11, 2012
__________________
Date
2
01-2010-3751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103751