0120092412
09-11-2009
Matthew P. Smith, Complainant, v. Wayne Clough, Secretary, Smithsonian Institution, Agency.
Matthew P. Smith,
Complainant,
v.
Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120092412
Agency No. 0905033009
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 20, 2009, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
In a complaint dated March 30, 2009, complainant alleged that he was
subjected to discrimination on the bases of race (Caucasian), sex (male),
and disability (Trick Knee) when: l) On December 16, 2008, he received a
communication from his supervisor addressing performance issues, and 2)
On January 13, 2009, his contract was terminated due to poor performance.
The record reflects that complainant received a contract to perform work
on the Latin American Plant Initiative (LAPI) for the Smithsonian during
the period of November 3, 2008, to January 23, 2009. The contract was
terminated by the Smithsonian, effective January 13, 2009.
The record contains a multi-part document identified as "Purchase Order,"
dated October 29, 2008 (No. 09-PO-333-0000162216), which provides,
in part, that:
All work under this purchase order shall begin on November. 3, 2008,
and be completed by January 23, 2009. The price to the Smithsonian
Institution for this purchase order is $5,184.00. This price includes
all costs ($18 per hour for l2 weeks at 24 hours per week). A payment
shall be made upon completion of specified work by the contractor and
acceptance by the Collections Manager of the Botany Department or his
designee. Contractor shall submit a proper invoice and payment will be
made.
The Statement of Work specifies, in full, that:
The contractor will work on the Latin American Plants Initiative (LAPI)
Project under the direction of the Collections Manager, Department
of Botany (also the COTR). Contractor will be responsible for tasks
involving botanical collections, data and image generation, and library
research. Following established procedures provided by the COTR,
contractor will: a) review herbarium collections to extract possible
type specimens, b) conduct library research to locate protologues to
verify the type status of extracted specimens, and c) participate in
data entry and image generation for specimens. All work will be done
at SI location, and all materials and equipment will be provided by SI.
Under Independent Contractor Not an Employee:
It is understood that contractor is undertaking the work hereunder
as an independent contractor, not as an employee of the Smithsonian
Institution, and neither Contractor nor Contractor's employee are
eligible for Smithsonian Institution benefits, including coverage
under FECA (workers compensation) and FTCA(Federal Tort Claims Act),
or coverage under any Smithsonian Institution workers compensation,
medical liability or other insurance policy, or for legal protections
afforded to employees under law applicable to employment relationships.
a) Contractor is responsible for providing, at Contractor's
own expense and as necessary, disability, unemployment, workers
compensation and other insurance, including adequate liability
and property insurance, training, permits, and licenses for
Contractor and for Contractor's employees,
b) Contractor is responsible for paying all taxes and income
taxes, including estimated taxes, incurred as a result of
the payments by the Smithsonian Institution to Contractor for
performance of this Agreement.
Contractor agrees and acknowledges that the Smithsonian Institution
assumes no responsibility whatsoever for the acts, errors and-or
omissions of Contractor beyond those which the Smithsonian Institution
is responsible for at law.
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." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency by
Title VII only if he may be deemed an employee of the agency or applicant
for employment with the agency.
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed
to be "employees" 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)).
Based on the legal standards and criteria set for herein, we find that
the agency did not exercise sufficient control over the complainant's
position to qualify as the employer or joint employer of complainant.
See generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313
(March 16, 2006). Therefore, the Commission finds that complainant has
not established that he is an employee or applicant for employment with
the agency covered by the provisions of Title VII or the Rehabilitation
Act. This matter thus fails to state a claim under EEO regulations and
is therefore dismissed.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 11, 2009
__________________
Date
2
0120092412
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092412