0120100882
06-11-2010
Kenya Speights, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Kenya Speights,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100882
Agency No. ARFTEUST09JUL03991
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 16, 2009, dismissing her 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed for failing to qualify as an 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).
In a complaint dated October 30, 2009, complainant alleged that she was
subjected to discrimination on the bases of race (African-American), sex
(female), and reprisal for prior protected EEO activity under Title VII
when: on July 20, 2009, she was terminated as a Contractor with Absolute
Staffers, LLC, Laurel, MD, while working as a General Clerk III at the
McDonald Army Health Center, Fort Eustis, VA.
In its final decision, the agency determined that complainant was
an independent contract worker employed solely by Absolute Staffers,
LLC, Laurel, MD, and that she was not a federal agency employee nor
considered to be under joint employment between Absolute Staffers, LLC,
and the agency. The agency concluded that complainant has no standing
under the federal anti-discrimination statutes to pursue an EEO claim.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether 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).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based
on race, color, religion, sex, or national origin." Thus, Section
717(a) expressly prohibits discrimination by federal agencies against
"employees" and "applicants for employment." Furthermore, Commission
regulations provide that 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).
Therefore, it must be determined whether the complainant may be deemed an
employee of the agency or applicant for employment with the agency. 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. Department
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. 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.1 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 Guidance, supra at 11.
The record reflects that complainant was employed by Absolute Staffer
and assigned as a receptionist to the agency's Behavioral Health Clinic.
Absolute Staffers had a contract with the agency to provide several
positions, including complainant's position. The contract held that
the contractor, not the agency, was responsible for the performance and
conduct of its employees; that the contractor's employees were not subject
"to the supervision and control usually prevailing in relationships
between the government and its employees." The record shows that all
retirement and leave benefits for complainant were paid by Absolute
Staffers. The agency also did not provide for complainant's medical
insurance or pay her social security taxes, or conduct evaluations of
her work performance.
The record reveals that on June 29, 2009, complainant was involved in a
verbal altercation in the front lobby of the Behavioral Health Clinic
with another employee, in front of several patients. Complainant was
asked by agency management if there was a problem. Complainant, in
front of the patients, yelled at the manager involved, stating that
he would not do anything. Since complainant was a contract employee,
agency management did not counsel her, but instead contacted Absolute
Staffers to take action in this case. Ultimately, Absolute Staffers
removed complainant from her position at the agency.
Based on the legal standards and criteria set for herein, 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).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
June 11, 2010
__________________
Date
1 Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers may
be hired by "staffing firms" which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
??
??
??
??
2
0120100882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100882