01a62520
08-22-2006
Larry R. Cornelius, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Larry R. Cornelius,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A62520
Agency No. DOS-F-033-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 13, 2006, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record indicates that complainant is a uniformed security officer
assigned to the agency's headquarters in Washington, D.C. His employment
is with Inter-Con Uniformed Protection Services (Inter-Con) which is a
contractor for the agency and provides uniformed protective services
for all agency facilities. Complainant contacted the EEO Counselor
regarding the actions of the Deputy Project Manager, also an employee of
Inter-Con. In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Black), disability (back injury), age
(D.O.B. 01/13/45), and reprisal for prior protected EEO activity1 when:
1. On about December 8, 2005, the Deputy Project Manager accused
complainant of having written an anonymous letter concerning a co-worker
abusing his time;
2. On about December 21, 2005, the Deputy Project Manager asked
complainant if his age and back injury were interfering with his work;
and
3. Effective January 1, 2006, he was transferred from his assigned duty
station to another, even though complainant had told the Deputy Project
Manager that his age and back injury were not interfering with his work.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency noted that
complainant was an employee of Inter-Con, not of the agency. Further,
based on the weighing factors, the agency determined that it did not
have the requisite control over complainant's means and manner of work
to give him the status of an employee of the agency. As such, the agency
dismissed the complaint. Complainant appealed asserting that the agency
was in total control over the operations of his hours and assignments.
Further, he argued that, in order for the agency to carry out its mission,
he and the other Inter-Con security staff were necessary to provide a
high level of security especially in light of the current war on terror.
The agency asked that we affirm its dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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).
The Commission must first determine whether the complainant was an agency
employee or applicant for employment within the meaning of Section
717(a) of Title VII of the Civil Rights Act of 1964, an amended, 42
U.S.C. 2000e-16(a) et. seq. 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. 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. The Guidance
lists some additional factors to help determine if an individual is an
employee, i.e., (a) the firm has a right to assign additional projects
to the worker, (b) the firm or the worker sets the hours of work, and
(c) the worker has no role in hiring and paying assistants.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. The record shows that complainant's salary is
determined and directly paid by the contractor, Inter-Con, rather than
by the agency. The record shows that it was Inter-Con that provided
complainant with leave and other benefits. Further, it is evident that
Inter-Con had authority to control the means and manner of complainant's
work, and in this regard we note that the management official alleged to
have engaged in the discriminatory activity is an employee of Inter-Con,
not the agency. We note that on appeal complainant asserts through
counsel that the mission of Inter-Con's security staff is to protect
national security in effectively acting as the agency's police force.
However, we find that this factor, even if accurate, is not sufficient
to establish that complainant is a federal employee. Considering all the
factors in this case and the record as a whole, we find that complainant
is not an employee of the agency. We further find that the agency was
not a "joint employer" of complainant, particularly in light of the
limited control it had over the means and manner of complainant's work.
Based on the record, we find that complainant was not an agency employee
for purposes of Title VII.
Accordingly, the agency's decision dismissing the complaint on the grounds
of failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1) was
proper and 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
August 22, 2006
__________________
Date
1 The record indicates that complainant filed EEO complaints in 2000
and 2001 without any further details.
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01A62520
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62520