01a51807
07-07-2005
Larry Williams, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Larry Williams v. Department of the Army
01A51807
July 7, 2005
.
Larry Williams,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A51807
Agency No. ARFTBUCH04SEP03560
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 22, 2004, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (African-American) when he was issued a termination
letter dated July 29, 2004 that became effective August 2, 2004.
The agency dismissed the claim on the grounds of (1) a failure to state a
claim and (2) untimely EEO Counselor contact. Specifically, the agency
determined that complainant is not an "employee" within the meaning of
the EEO regulations, but rather is an independent contractor whose direct
employer was CORDEV, Inc. As such, the agency concluded that he has no
standing to file a discrimination complaint against the agency. Secondly,
the agency found that the alleged discriminatory incident occurred on
August 6, 2004, yet complainant contacted the EEO Counselor on September
24, 2004. Although complainant argued that did not know of the forty-five
day time limit and believed he had more time, the agency maintained that,
even if true, he is deemed to know of the forty-five day time frame from
the posters which were visibly posted at complainant's workplace.
Complainant submits no statement on appeal. The agency requests that
we affirm its FAD.
The Commission has applied the common law of agency test to determine
whether a complainant is an agency employee under Title VII. See Ma
v. Dep't of Health & Human Servs. EEOC Appeal No. 01962390 (June 1, 1998);
Lonegan v. Dep't of Veterans Affairs, EEOC Request No. 05970406 (July 10,
2000) (applying the test from Community for Creative Non-Violence v. Reid,
490 U.S. 730, 750-51 (1989) and Nationwide Mut. Ins. 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 id.
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. The Commission
in Ma also noted that prior applications of the test established in
Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), using many of the
same elements considered under the common law test, was not appreciably
different from the common law of agency test. See id.
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. Complainant does not dispute that he was hired by
CORDEV, Inc. to perform under government contract No. DAAB32-99-C-1014 as
the Site Manager and the senior CORDEV employee. In fact, in his formal
complaint, he admits that he is a contractor working under CORDEV, Inc.
See Formal Complaint. The agency explained that �under section H,
Special contract Requirements, per contract clause 52.000-4028, Contract
Personnel Administration (ATS), CORDEV had full responsibility and control
of all its employees working under this contract at Fort Buchanan.�
Memorandum from Army General Attorney to EEO Office, dated 10/28/04.
Furthermore, without dispute from complainant, the agency maintained
that it did not evaluate contract employee performance. See id. (citing
contract clauses C.4.9, C.4.10 and C.4.10.3). �Management at CORDEV,
Inc. retained control over work performance and disciplinary actions
against any CORDEV employee[s].� Id.
Complainant's salary was also directly paid by the CORDEV, Inc. rather
than by the agency. See id. Moreover, although the U.S. Army furnished
contractors with office space and office equipment, CORDEV, Inc. provided
the equipment, such as vehicles, uniforms, tools, etc., necessary for
them to carry out their job functions. See id. Complainant has failed
to refute the agency's position that it was CORDEV, Inc. that provided him
with vacation time, medical insurance and retirement plans. Additionally,
complainant has not refuted the agency's assertion that CORDEV, Inc. had
sole authority to terminate her employment. We further find that the
agency was not a joint employer of complainant in light of it not having
sufficient control over the means and manner of complainant's work. See
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). Based on the record, we find
that complainant was not an agency employee.
We also find that the agency was correct to dismiss the complaint as
untimely. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination be brought to the attention of the EEO
Counselor within forty-five days of the effective date of the action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the forty-five day
limitation period is triggered. See Howard v. Dep't of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission agrees with the agency that complainant lacked due
diligence in the enforcement of his rights. The alleged discriminatory
incident occurred on August 6, 2004. Complainant did not contact an
EEO Counselor about the incident until September 24, 2004. This is
clearly beyond the forty-five day time period. Complainant offers no
argument in defense of his delay. He simply states that he believed
the time frame to be another. However, the agency maintains that an
EEO poster is on display in complainant's former workplace, and as
such, complainant should have known of the deadline for contacting
the Counselor. Complainant does not deny that the poster was on display.
For the reasons set forth herein, the agency's decision to dismiss the
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
July 7, 2005
__________________
Date