0120102820
09-30-2010
Katherine Charlton-Perkins, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Katherine Charlton-Perkins,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120102820
Agency No. 20100031R11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 18, 2010, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the basis of disability (Severe Attention Deficit Hyperactivity Disorder) and retaliation when:
1. On November 4, 2009 Complainant learned that funding under the University of Cincinnati Traineeship Grant Program with the Agency had been terminated and she was terminated on December 26, 2009;
2. On January 5, 2010, Complainant learned that her mentor and others were talking to others about her regarding her termination and her EEO complaint.
The Agency dismissed the claims for failure to state a claim on the grounds that as a participant in a grant funded program with the University of Cincinnati, Complainant was neither an employee nor an applicant for employment and hence is not entitled to access to the Federal Sector EEO process. On appeal, Complainant argues that she should be viewed as either a Federal employee for purposes of this complaint, or that some type of joint employer relationship exists between the Agency and some other unspecified entity. The Agency has presented no argument on appeal.
ANALYSIS AND FINDINGS
Complainant on appeal addresses some of the factors listed in Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) to support her argument that she should be considered a Federal employee. In determining whether a complainant 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., the Commission has applied the common law of agency test. See Ma (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). Specifically, the Commission looks at 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. See Ma, 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.
Furthermore, under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov.), we have also recognized that a "joint employment" 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 the 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 Guidance, supra at 11.
Complainant essentially argues that she meets enough of the Ma factors that she should be considered a Federal employee. Specifically, Complainant argues that: she was required to work on Agency work for no less than 20 hours per week under supervision from her Agency mentor (M); the grant award was based solely on the evaluation of M; Complainant worked over 40 hours a week on experiments and analysis designed by the Agency and conducted at Agency facilities to assist in the development of Agency regulations; M was required to propose the type of work performed by Complainant and the University of Cincinnati had no influence over the type of work Complainant performed; the grant administrator at the University of Cincinnati told Complainant he had no authority to influence Complainant's dismissal; and finally "All of the decisions that involved the rest of my nor ruined career, were based around the work I was completing in [Agency] labs, under the direction and discretion of [Agency] employees. The decision to terminate me originated with [another Agency official]."
We note initially that in her Formal Complaint, Complainant describes herself as a student/trainee and as an 'Agency supported PhD student." She further marked the "no" box on the Complaint form when asked "Are you now working for the Federal Government?" We further note that a decision to terminate a grant program is inherently not an action that alleges a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Quraishi v. Department of Commerce, EEOC Appeal No. 0120083146 (November 5, 2008); see generally, Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We note in this regard that Complainant cites Title 40: Parts 7.2(a) and 7.3 to support her contention that discrimination in programs receiving Federal funding is prohibited. While this may well be the case, the Commission has no authority to enforce Title 40. As Complainant herself points out, Part 7.2(a) states that the Agency's Office of Civil Rights is charged with investigating complaints of discrimination from applicants and recipients of Federal funding from the Agency. However, Title 40 does not state that the Commission has jurisdiction over any aspect of such complaints.
Based on a thorough review of the record, and consideration of the arguments of the parties, we find that Complainant has not met her burden of showing that she should be considered a Federal employee for purposes of this complaint.
In view of the fact that Complainant has not shown that the Commission has jurisdiction over the termination of funding under a traineeship grant program, or that she should be considered a Federal employee for purposes of this complaint, we AFFIRM the FAD.
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
September 30, 2010
__________________
Date
2
0120102820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120102820