01a10983
02-06-2001
Kim Gallagher v. Department of Commerce
01A10983
February 6, 2001
.
Kim Gallagher,
Complainant,
v.
Donald Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A10983
Agency No. 00-63-0829D
DECISION
The agency, Bureau of Census, and the Equal Employment Opportunity
Commission (EEOC) entered into a Memorandum-of-Understanding (MOU)
to govern complaints filed by decennial census workers. Pursuant to
this MOU, the EEOC's Washington, D.C. Field Office decided whether to
accept the complaint, conducted settlement negotiations, and returned the
complaint to the agency for investigation. During the investigation,
the agency determined that complainant was employed by a contractor,
not the agency. As a result, the agency dismissed the complaint for
failure to state a claim on October 18, 2000.
In its dismissal, the agency found that complainant was an employee of
�National Computer Systems� (NCS), not the agency. The agency found that
complainant was paid by NCS, supervised by NCS employees, and trained
by a third party hired by NCS. Further, the responsible officials are
NCS employees. Although complainant may have used agency equipment
when performing her duties, the agency found that complainant was not
an agency employee, and therefore was not eligible to proceed through
the Federal Sector EEO process.
On appeal, complainant does not argue that she was an agency employee.
She notes that she was hired through �Desert Legacy Vocational Services,�
another government contractor.
To state a claim of discrimination, complainant must be an employee or
applicant of the agency. The agency may dismiss complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). The Commission applies
the common law of agency test to determine whether complainants are
�employees� entitled to protection under Federal Sector Regulations.
See Zheng v. Department of Health and Human Services, EEOC Appeal
No. 01962389 (June 1, 1998).
Under this test, the Commission finds that complainant was not an
employee or applicant for employment with the agency. Complainant
is paid, supervised, and trained through outside organizations.
She was disciplined by employees of the contractor, NCS. Therefore,
the Commission finds that complainant was a contractor, not an agency
employee entitled to protection under Federal Sector regulations.<1>
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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
February 6, 2001
__________________
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
______________________________
1As an employee of a private corporation, complainant should contact
the EEOC directly at 1-800-669-4000 to file a charge of discrimination,
if she wishes to do so.