01995707
07-13-2000
Linda M. Lewis, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.
Linda M. Lewis v. Federal Emergency Management Agency
01995707
July 13, 2000
Linda M. Lewis, )
Complainant, )
)
v. ) Appeal No. 01995707
) Agency No. 97008
James Lee Witt, )
Director, )
Federal Emergency Management Agency, )
Agency. )
_____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 18, 1999, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37, 644,
37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
The record reflects that for the relevant period in question,
complainant worked for the U.S. Department of Agriculture, (USDA),
as an Emergency Program Specialist. During this period, complainant
worked with representatives from the Federal Emergency Management Agency,
(FEMA), in evaluating radiological exercises as part of the Radiological
Emergency Preparedness program.
While working with FEMA, complainant alleged employment discrimination
in violation of Title VII. Complainant filed a formal complaint on
February 25, 1997, alleging that she was subjected to discrimination on
the bases of sex (female) and reprisal (prior EEO activity) when:
on November 15, 1996, she learned that a FEMA Region III employee
recommended that she not be used as an evaluator for a PLUME exercise;
she had been treated differently than similarly situated male
employees;
a Region III employee insulted and humiliated her in front of her
peers in a State of Delaware meeting; and
she suffered from a continuing pattern of discrimination from FEMA
Regions I and II in terms of her work assignment.
In a final agency decision, the agency dismissed complainant's complaint
pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)),
for failure to state a claim. The agency followed an Administrative
Judge's decision dated May 11, 1999, recommending that the complaint be
dismissed because complainant lacks standing under EEOC Regulation 29
C.F.R. � 1614.103(c).
ANALYSIS AND FINDINGS
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."
The Commission has held that it will apply the common law of agency test
in order to determine whether complainant should be deemed an �employee�
under Section 717 of Title VII. 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 is usually 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 Zheng v. Department
of Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998);
Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998)(citing Nationwide Mutual Insurance Co. et. al. v. Darden,
503 U.S. 318, 323-24 (1992)).
In the present case, the Commission finds that the complainant is an
employee of the USDA and not FEMA. As an employee, complainant received
pay, annual leave, and benefits from the USDA, as well as supervision
and evaluations from her agency's management. Although complainant
argues that FEMA controlled her working conditions, the Commission views
complainant's brief and occasional contact with FEMA too infrequent
to warrant finding the agency and complainant in an employor-employee
relationship. Complainant, therefore, lacks standing to bring a claim
against FEMA under EEOC Regulation 29 C.F.R. � 1614.103(c). Thus, the
Commission finds that the agency properly dismissed the complaint for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a).<2>
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
07-13-00 ________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Moreover, the Commission denies complainant's Motion to Consolidate
her cases against the USDA and FEMA since we dismissed her FEMA complaint
for lack of standing. We note that since complainant is not an employee
of FEMA, she should properly pursue her claim against her employer,
the USDA.