Kenneth L. Ryfkogel, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 16, 2000
01A03701 (E.E.O.C. Aug. 16, 2000)

01A03701

08-16-2000

Kenneth L. Ryfkogel, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Kenneth L. Ryfkogel v. Department of the Navy

01A03701

August 16, 2000

.

Kenneth L. Ryfkogel,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A03701

Agency No. DON 00-68098-001

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated March 14, 2000, dismissing his 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.<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of sex and reprisal for reporting and opposing

workplace harassment when:

All staff continuously made inappropriate comments regarding his

education, work practices, and salary; and

The technician staff provided him with inaccurate patient data; caused

scheduling delays; and failed to perform assigned tasks, which he reported

to supervisors, who failed to respond.

The agency dismissed the complaint for failure to state a claim, finding

that complainant was not an employee of the agency, but was instead an

independent contractor employed by a staffing firm. In reaching this

conclusion, the agency found that although complainant performed his work

on the agency's premises with agency tools and equipment, the agency had

no authority to withhold taxes; provide leave or workers' compensation;

or terminate him. The agency also determined that complainant's work

required a high degree of expertise, and that he was engaged in the

private practice of optometry in addition to the work he performed under

contract for the staffing firm. Furthermore, the agency found that

it was unable to assign complainant to duties outside of optometry,

and that optometry was not the �business� of the agency, but rather a

service provided to military personnel and their dependents.<2>

On appeal, complainant argues that the deliberate and detrimental

interference of the staff in his work, and the constant monitoring by

agency doctors working at the same facility, is tantamount to control

over his work, such that he maybe deemed an employee for the purpose of

pursuing an EEO complaint against the agency. In particular, complainant

argues that one of the supervisory physicians attempted to control patient

care by ordering him to inappropriately dilate certain patients and to

illegally write prescriptions even though he had no authority to do so.

Complainant also argues that the agency and the staffing firm controlled

his schedule, the number of hours worked, and the number of patients seen.

Complainant further argues that control was evidenced by the fact that he

performed all services on the agency's premises with its own equipment,

and argues that the agency attempted to control patient care when

staff refused to obtain necessary equipment for his use. Complainant

further argues that he was paid by the hour; had no role in hiring

assistants; and that although he was able to maintain his own private

practice, he was prohibited from running contact lens advertisements.

Complainant additionally argues that although the agency may not have

technical authority to terminate him, it had the right to request

his discharge through the staffing firm, which is how he was removed.

Furthermore, complainant argues that the agency required him to take

training courses, and that he felt he was developing a relationship by

virtue of an affiliate staff position he was granted at certain military

medical facilities. Moreover, complainant argues that he is a �joint�

employee of the staffing firm and the agency because they each exercised

the requisite control over his work.

In response, the agency argues that the staffing firm controlled where

complainant worked, noting that it reassigned complainant to work at

two different facilities on different days. The agency additionally

argues that complainant's work requires a high degree of expertise that

required him to follow accepted procedures, and that because of his

contract with the staffing firm, he was required to �follow the rules,

procedures and processes of the client.� The agency further argues that

complainant was paid an hourly wage by the contracting firm, and that

he only worked at the agency's facilities as long as the contracting

firm assigned him to do so. Moreover, the agency contends that it had

no authority to assign complainant outside of the practice optometry,

and that although he could direct the administrative and technical staff,

he had no role in hiring or firing them. As noted in its final decision,

the agency indicated that it provided complainant with no benefits such

as leave, and was not responsible for any tax withholding or reporting.

The agency argues that it did not have the authority to discipline or

fire the complainant, and that in the final analysis, it did not control

the �means and manner� of his work performance sufficient to render him

its employee.

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. 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 determines that the agency did not exercise sufficient

control of the �means and manner� of complainant's work to support

a finding that he was an employee of the agency. We determine that

complainant performed as a highly skilled, independently licensed,

medical professional, who was expected to work autonomously in providing

patient care. We are not persuaded by complainant's arguments that

two physicians, and certain identified staff members, exerted control

over his provision of patient care. First, we find that the claimed

interference and failure to provide support, were not intended as a

supervisory means of controlling his work. Second, we do not find

that the purported instructions to dilate certain patients and to

illegally write prescriptions were intended as supervisory control.

Complainant himself acknowledges that these purported instructions

lacked legitimacy, and that, with one exception, he ignored them.

In further evaluating complainant's relationship with the agency, we find

that notwithstanding complainant's arguments to the contrary, the nature

and length of the relationship between complainant and the agency was

determined entirely by the contract between complainant and the staffing

firm, which had the sole authority to terminate him, and did so without

notice or any of the other rights normally afforded to federal employees

prior to termination. 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.

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

August 16, 2000

__________________

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.

2The agency determined that complainant filed the complaint with the

inappropriate agency because he informed the EEO Counselor that the

Department of the Army discriminated against him. However, based on the

appeal record at the Commission, we find that complainant is claiming that

he was employed by the Department of the Navy and the staffing firm, and

by the Department of the Army and the staffing firm, because each agency

had a contract with the staffing firm, and because complaint provided

optometry services to both agencies under the terms of these contracts.

We note that complainant filed separate complaints against each party

and that the Department of the Army's dismissal of the complaint is

currently on appeal before the Commission as EEOC Appeal No. 01A04012.