01A04012
11-09-1999
Kenneth L. Ryfkogel, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Kenneth L. Ryfkogel v. Department of the Army
01A04012
August 16, 2000
.
Kenneth L. Ryfkogel,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04012
Agency No. AOEWFO-0004-A0-160
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 14, 2000, dismissing his complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
against the agency alleging that he was subjected to discrimination
on the basis of sex<2> when he was terminated as an optometrist at an
agency medical center effective December 8, 1999. Complainant claims
that he was subjected to on-going harassment by supervisory personnel
at the agency which resulted in his eventual termination.
The agency dismissed the complaint, finding that complainant was an
independent contractor, and was not an agency employee. Specifically,
the agency determined that complainant was an independent contractor of
the staffing firm which contracted with the agency to provide services
to its medical center. The agency found that because complainant did
not have an individual contract with the agency; was not on its payroll;
and did not receive a salary or benefits from the agency, he was not an
employee. The agency also noted that because its managers did not have
direct control over complainant due to his status as a contract worker,
complainant was not an employee of the agency for this reason as well.
On appeal, complainant claims that he is an �employee� of both the
staffing firm and the agency as �joint employers,� arguing that the
agency exercised extensive control over his work. Complainant makes
reference to Commission's Enforcement Guidance: Application of EEO Laws
to Contingent Workers Placed by Temporary Employment Agencies and Other
Staffing Firms (December 3, 1997) (hereinafter referred to as �Guidance�),
in support of his contention that he is a joint employee of the staffing
firm and the agency. Complainant argues that under the Guidance, the
main factor in determining employee status in his situation is control
by the agency, and that the fact that he was not on the agency's payroll
is irrelevant. Complainant additionally makes reference to his appeal
statement to the Commission regarding his complaint against the Department
of the Navy for the same termination by the staffing firm, which he
indicates sets forth in detail how his working conditions with the agency
satisfied the criteria for joint employment status under the Guidance.<3>
In response, the agency reiterates its determination that complainant
did not have the status of an agency employee, and that the complaint
was properly dismissed.
The Commission's regulations provide that an agency shall accept a
complaint from any aggrieved
employee or applicant for employment who believes that the agency
has discriminated against him because of race, color, religion, sex,
national origin, age, or disability. 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. �1614.103). In order to determine whether an individual is
an employee under Title VII, "the Commission will apply the common law
of agency test, considering all of the incidents of the relationship
between the [complainant] and the agency ..." Ma and Zheng v. Department
of Health and Human Services, EEOC Appeal Nos. 01962390 and 01962389
(June 1, 1998). In Ma, the Commission held that "the application of the
Spirides [Spirides v.Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979)]
test has not differed appreciably from an application of the common law
of agency test." Id. (citation omitted).
In Ma, the Commission described the common law of agency test as follows:
In [Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, (1992)], the Court
adopted the factors listed in [Community for Creative Non - Violence
v. Reid, 490 U.S. 730, 751-752 (1989)], as part of the common-law test
for determining who qualifies as an "employee" under ERISA: the hiring
party's right to control the manner and means by which the product is
accomplished; the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the
tax treatment of the hired party. 503 U.S. at 323-324. The Court also
referenced the Restatement (Second) of Agency �220(2)(1958) as listing
non-exhaustive criteria for identifying a master-servant relationship,
and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20
factors as guides in determining whether an individual qualifies as a
common-law "employee" in various tax law contexts. The Court emphasized,
however, that the common-law test contains "no shorthand formula or magic
phrase that can be applied to find the answer,...all of the incidents of
the relationship must be assessed and weighed with no one factor being
decisive." 503 U.S. at 324, quoting NLRB v. United Ins. Co. Of America,
390 U.S. 254, 258 (1968). Ma, EEOC Appeal No. 01962390.
The Commission has carefully considered complainant's arguments on
appeal, as well as his supporting documentation, and determines that
complainant was not an employee of the agency. Specifically, we determine
that as a highly skilled, independently licensed, medical professional,
complainant worked autonomously in providing patient care. We note that
any control by the agency related merely to office routines, such as
scheduling and patient referrals.
Although as a party to the contract, the agency could request
reassignments; schedule changes; or even removal to better accommodate its
needs, it did not have the authority to do so directly. We note also that
the agency had no authority to prohibit complainant from engaging in the
private practice of optometry, a control it exercised over the doctors
that it did employ. Moreover, we find the fact that complainant was
not on the agency's payroll, or receiving any agency employee benefits,
to be a factor in our analysis, strongly suggesting that he was not an
�employee� of the agency.
Accordingly, we find that complainant was not an employee of the agency,
and that the agency's decision dismissing the present case for failure
to state a claim was proper. We AFFIRM the agency's dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
__________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2On appeal, complainant also claims reprisal for opposing discriminatory
harassment.
3 The record reflects that complainant worked under contract to the
staffing firm providing medical services as an optometrist at medical
facilities operated by both the Department of the Army and the Department
of the Navy. The staffing firm subsequently terminated his services to
both agencies. Complainant filed EEO complaints against both agencies,
and filed a charge of discrimination against the staffing firm, as well as
another entity having a contractual relationship with the staffing firm.
Additionally, complainant has filed an appeal with this Commission
regarding the Department of the Navy's dismissal of his complaint on
the grounds that he was not an agency employee. The appeal is pending
under EEOC Appeal No. 01A03701.