0120093599
12-18-2009
Iris Wesselhoft, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Iris Wesselhoft,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093599
Agency No. 2003-0760-2009103017
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 10, 2009, dismissing her formal 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.
During the period at issue, complainant was a Packer/Shipper through
a corporate entity identified as Team Staff Government Solutions
(hereinafter referred to as "Team Staff"), working under a contract
with the agency. Complainant worked at the agency's Consolidated Mail
Outpatient Pharmacy (CMOP) in Leavenworth, Kansas.
On June 29, 2009, complainant filed the instant formal complaint.
Therein, complainant claimed that she was subjected to discrimination
on the bases of race, national origin and religion when:
on May 12, 2009, she was terminated from her position with Team Staff
Government Solutions, a private sector company/or agency contractor.
In its August 10, 2009 final decision, the agency dismissed
complainant's complaint for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). The agency determined that complainant was not
a Federal employee, and that she was instead a contractor, not covered
by Title VII.
The record contains a memorandum dated May 19, 2009 from the Supervisory
Pharmacy Technician (S1) at the agency's CMOP. Therein, S1 stated that
complainant was a contractor employee under a contract between the agency
and Team Staff. According to S1, complainant's supervision remained
the responsibility of Team Staff; and that Team Staff monitored the
performance of its employees, including complainant. Specifically,
S1 stated that Team Staff "supplies their own Facility Administrator
and first and second line supervisors. These are not VA employees."
S1 further stated that employee actions taken by the Contractor's
Facility Administrator who is not a VA employee, do not involve the VA.
The contractor addresses their own employee issues and deal with all human
resources functions for their employees. This includes attendance,
timekeeping, payroll, performance and any disciplinary actions."
Furthermore, S1 stated that Team Staff "governs their employees.
Team Staff is held to the guidelines in the contract but the VA does not
contract for specific individuals, we contract for a general estimate
of a number of positions."
The record reflects that Team Staff made the determination to terminate
complainant, not the agency. Furthermore, the record in the case reflects
that in her instant formal complaint and during the EEO counseling
process, complainant identified herself as a contractor employee of the
agency.
On appeal, complainant argues that she was "falsely accused" of making
errors in dispending medication and that she should have not been
terminated. Complainant further argues "I did not have a chance to go to
the Government side [S1] did not give me the opportunities to advance.
Instead, she hand pick who she wanted to placed in the Government side.
I should have been First in Line to be placed to the Government side
permanent."
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee or applicant for employment
within the meaning of Section 717(a) of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. 2000e-16(a) et. seq. 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 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. 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 Agencies and Other
Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereinafter
referred to as the "Guidance"), we have also recognized that a "joint
employer" 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).
Based on these legal standards and criteria, we find that the agency did
not exercise sufficient control over the complainant's position to qualify
as the employer or joint employer of complainant. See generally, Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
The agency's dismissal was appropriate and we AFFIRM the agency's final
decision.
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
December 18, 2009
__________________
Date
2
0120093599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093599