0120100946
06-08-2010
Naser M. Khater, Complainant, v. Dr. Arden L. Bement, Jr., Director, National Science Foundation, Agency.
Naser M. Khater,
Complainant,
v.
Dr. Arden L. Bement, Jr.,
Director,
National Science Foundation,
Agency.
Appeal No. 0120100946
Agency No. NSFOEP-CT-09-012
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 10, 2010, 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. In his
complaint, complainant, a network lead engineer (team leader), alleged
that he was subjected to discrimination on the bases of:
1. religion (Islam) when on July 20, 2009, he was subjected to a hostile
work environment when two employees on his team mocked and made fun of
Islam in his presence, and management did not take appropriate action;
and
2. religion and reprisal for reporting discriminatory activity which
violated Title VII when on August 20, 2009, he was immediately released
after giving two weeks notice he was resigning.
The record reflects that Digital Solutions, Inc. (DSI) had a contract
with the agency to provide infrastructure support services. DSI had
a subcontract with Compuware Corporation to assist in this endeavor,
which in turn had a subcontract with Arena Technical Resources, LLC (ATR).
Complainant was employed by ATR. The two employees in claim 1 worked for
DSI. Complainant's immediate supervisor was a DSI manager, who in turn
reported to a DSI manager. Complainant reported the incident in claim
1 to his DSI supervisor, who elevated it to his DSI supervisor.
Complainant worked at an agency site, and the record, although not clear
on the matter, suggests his DSI supervisor also did. Complainant stated
that when he gave his two week notice that he was resigning from the
"company," management decided to release him immediately. Complainant's
DSI supervisor stated that management decided to pay him for two weeks
and requested that he not return to the work site.
The counselor's report summarily indicated that DSI controlled how
complainant performed his job, and the work performed was part of network
maintenance and support for the agency. Complainant's wages and benefits
were paid by ACR. In his complaint, complainant wrote that he had an
immediate agency supervisor who evaluated him, set his work schedule, and
gave him assignments. He did not identify the supervisor, and previously
wrote that while at the agency, he reported directly to a DSI supervisor.
We find that the record shows, by a preponderance of the evidence,
that complainant's first and second line supervisors were with DSI.
The agency dismissed the complaint finding that complainant was not an
employee of the agency for purposes of Title VII. Complainant filed
the instant appeal. On appeal, he makes no comment.
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.1 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 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 and we AFFIRM the agency's final
decision.
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
June 8, 2010
__________________
Date
1 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.
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0120100946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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