01A62854
08-28-2006
Nader Abu-Mathkour, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.
Nader Abu-Mathkour,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Intelligence Agency),
Agency.
Appeal No. 01A62854
Agency No. 05DI04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 7, 2005, 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.
The record indicated that complainant was hired on January 23, 2004, by SM
Consulting as an Arab Linguist Consultant to provide translating services
from Arabic to English to the agency in its Iraqi Survey Group Operations,
in Doha Qatar. On April 30, 2004, complainant began work at the agency.
At some point after complainant started working for the agency, he received
an e-mail from an Egyptian friend living in Kuwait. The e-mail contained
some Arabic text which complainant asserted he did not read and pictures
from the Abu-Gharib prison incident. In addition, there were pictures of
military-dressed men assaulting female captives. Complainant forwarded the
e-mail to seven or eight other SM Consulting employees. He indicated that
he added to the e-mail the following in English, "This is not the freedom
we have come to deliver. This is not the democracy we have to offer. This
is where our tax money is spent. George Bush, what a shame. Good job
boys."
The agency indicated that the e-mail did not go over well with the other
personnel in such a stressful environment. The agency was also informed
that women in the office had complained that complainant had aggressively
assaulted them. Based on the inappropriate behavior exhibited by
complainant, the agency informed SM Consulting of complainant's
unacceptable conduct. The agency indicated to SM Consulting that
complainant's behavior needed to be corrected or complainant needed to be
removed. SM Consulting, based on three complaints from female co-workers,
conducted an investigation. SM Consulting provided complainant an airline
ticket and was told to leave Qatar and return to their offices in Reston,
Virginia. Complainant refused to comply with SM Consulting's orders.
Based on complainant's refusal to comply, SM Consulting terminated
complainant.
On January 21, 2005, complainant contacted the EEO Counselor.
Subsequently, complainant filed his formal complaint alleging that he was
subjected to discrimination on the bases of national origin (Arab-American)
and religion (Muslim) when, on July 29, 2004, complainant was notified that
he was terminated from his position as a contract employee.[1]
The agency dismissed the complaint finding that complainant was not an
employee of the agency for purposes of Title VII. Complainant appealed.
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 must first determine whether the complainant was an agency
employee or applicant for employment within the meaning of Section 717(a)
of Title VII of the Civil Rights Act of 1964, an amended, 42 U.S.C. 2000e-
16(a) et. seq. The Commission has applied the common law of agency test to
determine whether an individual is an agency employee under Title VII. See
Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 &
01962390 (May 29, 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 Ma, supra. 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.
Furthermore, under the Commission's 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)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may exist
where both the agency and the "staffing firm" may be deemed employers.[2]
Similar to the analysis set forth above, a determination of joint
employment requires an assessment of the comparative amount and type of
control the "staffing firm, and the agency each maintain over complainant's
work. 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. See Guidance, supra at 11.
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 a joint employer of complainant. See
generally, Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March
16, 2006). Accordingly, we find that the agency's dismissal was
appropriate. Therefore, we AFFIRM the agency's final decision.
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
August 28, 2006
__________________
Date
-----------------------
[1] Complainant's termination was back dated to be effective May 28, 2004.
[2] Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way from
the norm of full-time, long term employment. Contingent workers may be
hired by "staffing firms" which may include a temporary employment agency
or a contract firm. See Guidance, supra at 1 & 3.