01A55224
12-20-2005
Myra D. Dobbs, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Myra D. Dobbs,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A55224
Agency No. 055421NETL
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 6, 2005, 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. 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.
BACKGROUND
Complainant is employed by the PACE Training and Evaluation Center
(PACETEC, Inc.) and works as an Administrative Assistant at the agency's
National Energy Technology Laboratory in Morgantown, West Virginia.
Complainant contacted an EEO Counselor regarding an incident on February 1,
2005. On that date, complainant overheard an agency employee telling a
racist joke during a phone conversation. Complainant indicated that this
same agency employee has uttered other racial slurs in her presence. In
her complaint dated March 23, 2005, complainant alleged that she was
subjected to discrimination on the basis of race (African-American) when,
on more than one occasion, an agency employee used racially offensive
language in her presence at the workplace.
The agency dismissed the complaint for failure to state a claim pursuant to
29 C.F.R. � 1614.107 (a)(1). Specifically, the agency stated that
complainant was neither an employee nor applicant for employment with the
agency. This appeal followed without comment. The agency responded to the
appeal requesting that the Commission affirm its dismissal.
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 he or 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, .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).
Here, the agency argued that complainant was not an employee but an
independent contractor. The Commission has applied the common law of
agency test to determine whether complainants are agency employees under
Title VII. See Ma v. Department of Health and Human Services, EEOC Appeal
No. 01962390 (June 1, 1998) (citing Nationwide Mutual Insurance 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 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 weighed
with no one factor being decisive." Id. The Commission in Ma also noted
that prior applications of the test established in Spirides v. Reinhardt,
613 F.2d 826 (D.C. Cir. 1979), using many of the same elements considered
under the common law test, was not appreciably different from the common
law of agency test. See Ma.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. Complainant does not dispute that she was hired by
PACETEC, Inc. to perform under government contract No. DE-AC26-03NT41832.
In fact, in her formal complaint, she admits that she is a contractor
working under PACETEC, Inc. See Formal Complaint. Further, complainant's
supervisor is also an employee of PACETEC, Inc. The agency also provided a
copy of the contract between PACETEC, Inc. and the agency. The contract
indicated that the agency rates the work of the contract employees; however
it is PACETEC, Inc. who handles performance issues. Further, the agency
showed that PACETEC, Inc. maintains responsibility over hiring, terminating
and paying their employees. When weighing all the factors together, we
find that complainant was not an employee of the agency. Therefore, the
matter was properly dismissed pursuant to 29 C.F.R. � 1614.107 (a)(1) for
failure to state a claim.[1]
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's complaint
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 20, 2005
__________________
Date
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[1] Although this complainant does not have standing to raise a claim in
the federal sector EEO process, the agency is now on notice of an
allegation that its workplace may be charged with racial animus. We note
that complainant indicated, among other things, that the agency employee
uttered a joke where the punch line involved hanging and a Black man;
complained that his hometown had been taken over by Blacks; and told her
about jewelry being stolen from his mother by their Black cleaning lady and
how "those people can't be trusted." Therefore, we recommend that the
agency address the situation.