0120160769
03-10-2016
Latricia P.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Latricia P.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120160769
Agency No. 9R1M15095
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 5, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Case Manager at the Agency's Robins Air Force Base in Georgia.
On October 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination when:
1. On the bases of sex (female), she was harassed by a Lieutenant Colonel who asked the Complainant, "Did you get your Tramp Stamp?" and
2. On the basis of reprisal for reporting her claim of sexual harassment she was subjected to harassment. In support of her claim, she alleged that the following events occurred:
i. On July 27, 2015, the Lieutenant Colonel came to her office and attempted to apologize by saying "It was brought to my attention that I hurt your feelings. I'm sorry if I hurt your feelings. I just like to joke and play around. I thought that we had a relationship to where I could joke with you" and prior to leaving asked if he could give her a hug.
ii. On July 28, 2015, the Lieutenant Colonel followed Complainant down the hallway into her room and attempted to continue the conversation from the day before.
iii. On August 27, 2015, while attending a mandatory meeting, the Lieutenant Colonel sat within six feet of Complainant which put him in her line of view to the presentation screen and when another case manager who was sitting beside Complainant began to discuss information shown on the screen. The Lieutenant Colonel turned his chair completely around to look at that individual; therefore looking at her. Complainant asserted that this was an attempt to intimidate her.
iv. On October 5, 2015, Complainant resigned her position effective, October 16, 2015, due to the harassment, stressful and hostile work environment.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that an analysis of Complainant's employment, based on common law tests, indicated that she is not an Agency employee. The Agency asserted that it did not exert sufficient control over Complainant to be considered a "joint employee" of the Agency. The Agency then summarily dismissed the matter for failure to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
The Commission's jurisdiction in the federal sector complaint process extends to employees and applicants for federal government employment. 29 C.F.R. Part 1614. EEOC Regulation 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. A complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government.
A federal agency may be deemed the de facto employer of an individual working under a contract if it has sufficient control over the worker, regardless of whether the worker is on the federal government payroll. Baker v. Dep't. of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, a federal agency may be an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, pp. 9-10 (Dec. 3, 1997) (hereinafter referred to as the "Guidance").
The Commission has applied the common law agency test to determine whether an individual is an agency employee for the purpose of utilizing the 29 C.F.R. Part 1614 complaint process. Baker v. Dep't. of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); Ma v. Dep't of Health and Human Serv., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing 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 hour 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 work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties.
Not all or even a majority of the listed criteria (hereinafter referred to as "the Ma Factors") need be met. Rather, the determination must be based on all of the circumstances in the relationship between the panics, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. See Ma v. Dep't. of Health and Human Serv., supra.
In the instant case, as noted above, the Agency failed to perform any analysis of the Ma factors. The Agency's final decision, in one brief sentence, simply concluded that Complainant was not an Agency employee. Upon review, we are unable to ascertain from the record whether the Agency exercised sufficient control over Complainant's position to qualify as his employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The Agency "has the burden of providing evidence and/or proof to support its final decisions." Ericson v. Dep't. of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); see also Complainant v. Dep't of the Army, EEOC Appeal No. 0120150809 (June 12, 2015). Here, the Agency has failed to support its final decision.
Consequently, we REVERSE the Agency's final decision and REMAND this matter to the Agency to supplement the record and analyze Complainant's work with the Agency as a Nurse Case Manager with respect to the factors cited in Ma, in accordance with the ORDER below.
ORDER
The Agency is ORDERED to conduct a supplemental investigation, which shall focus on the factors set forth in Ma v. Dep't. of Health and Human Serv., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998), including the extent to which the Agency controlled the "means and manner" of Complainant's work. As part of the supplemental investigation, the Agency shall gather affidavits (including from Complainant) and other relevant documentary evidence to address the Ma factors. Thereafter, the Agency shall either issue a final decision dismissing the complaint or letter accepting the complaint for investigation. The supplemental investigation and issuance of a dismissal decision or letter of acceptance must be completed within 60 calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 10, 2016
__________________
Date
everse and Remand0120150809 (June 12, 2015).der to detemrin if cnt ordance with the ORDER below.
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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