Matthew P. Smith, Complainant,v.Wayne Clough, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionSep 11, 2009
0120092412 (E.E.O.C. Sep. 11, 2009)

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