0120102286
09-07-2010
Madie Langley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Madie Langley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102286
Agency No. 200308702010101153
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 9, 2010, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint for failure to state a claim on the grounds that she lacked standing to bring a complaint against the Agency.
BACKGROUND
At all times relevant to the alleged discriminatory action, Complainant worked as a Contract Security Guard (CSG) for Capitol Protection Services (CPS). The record indicates that at the time of the alleged discriminatory action, Complainant was assigned to work at the Agency's Fort Hudson National VA Cemetery (HVAC) in Zachary, Louisiana. Complaint File (CF), EEO Counselor's Report at 3.
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African American) sex (female), and age (76) when: on December 12, 2009, she was removed from her position as a Contract Security Guard at the Hudson National VA Cemetery.
The record reveals that on April 9, 2010, the Agency issued a decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a) for failure to state a claim, finding that Complainant did not meet the common law test for establishing whether she was an employee of the Agency for purposes of filing an EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, inter alia, that the Agency improperly found that she did not have standing to bring a claim of discrimination. Complainant avers that she has standing because the HVAC Director (D-1), male, age and race unspecified, instructed her as to how to perform her job duties, and instructed her to contact him with any issues concerning the Cemetery. Complainant further asserts that D-1 removed her, and subsequently notified CPS that he wanted another security guard to replace her. Finally, Complainant asserts that D-1 was the discriminating official who harassed her.
On appeal, the Agency argues that Complainant is a contractor who failed to meet the requirements for establishing standing as an Agency employee. The Agency reiterated its contention that CPS controlled Complainant's job assignments, pay, benefits, and training. Further, the Agency notes that CPS was responsible for providing all materials, transportation, and labor to fulfill services as specified in the contract. The Agency also contends that Complainant's contentions on appeal are different from those she made before the EEO Counselor. On these grounds, the Agency requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
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 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, � 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). To state a claim under the Commission's regulations, an employee must allege and show an injury in fact. Specifically, an employee must allege and show a "direct, personal deprivation at the hands of the employer," that is, a present and unresolved harm or loss affecting a term, condition, or privilege of her employment. Id.
The Commission has applied the common law of Agency test to determine whether contractors should be deemed Agency employees for purposes of Title VII. See Gaines v. Department of the Army, EEOC Appeal No. 01A53152 (July 6, 2006); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (May 29, 1998). 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 weighted with no one factor being decisive." Id. Furthermore, in Baker, we noted that the Commission has recognized that a "joint employment" relationship may exist where both the Agency and the "staffing firm" may be deemed employers. EEOC Appeal No. 01A45313 (citing EEOC 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)). A joint employment determination requires an assessment of the comparative amount and type of control the "staffing firm" and the Agency each maintain over the employee's work. Id. 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. Id.
In the instant case, the record indicates that Complainant worked as a Contract Security Guard for CPS. In this regard, the record indicates that CPS controlled the means and manner of Complainant's work. Specifically, the record indicates that CPS was responsible for making, approving, and supervising Complainant's work assignments. CF, Ex. 1; Counselor's Report at 3. On appeal, Complainant argues that D-1 instructed her as to how she was to perform her job duties. However, we note that Complainant's contentions are contradicted by her earlier statements made before the EEO Counselor.
According to the record, Complainant stated that any time HVAC personnel attempted to instruct her to do something, she had to get approval from CPS before completing the task. CF, Counselor's Report at 3. The record also indicates that CPS, for which security services constituted an integral component of its business, was responsible for Complainant's pay, benefits, training, and supplies. CF, Ex. 1. The record also indicated that the contract between the Agency and CPS comprised a fixed contract price, which specified that CPS was responsible for all federal, state, and local taxes. Id. The record also indicates that because it was a fixed price contract, CPS was solely responsible for determining its profit, the hourly rate of pay to be allocated to security guards, retirement benefits, vacation benefits, sick pay, life and disability insurance benefits, and any other benefits. Id. Further, the contract specifies that CPS was responsible for providing "all materials, transportation, and labor to fulfill work services as specified." Id. After carefully balancing these factors in accordance with the principles discussed above, we find that the Agency did not exercise sufficient control over Complainant's work to qualify as an employer or joint employer. Accordingly, the Commission finds that Complainant was an independent contractor, not an employee of the Agency. As such, she has no standing to file a complaint under 29 C.F.R. �1614.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision dismissing Complainant's complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
___9/7/10_______________
Date
2
0120102286
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102286