[Redacted], Zachery V, 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Jul 7, 2022

Appeal No. 2022002531 (E.E.O.C. Jul. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2022002531 Agency No. DECA-00048-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 1, 2022, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Bagger at the Agency’s Seymour Johnson AFB Commissary facility in Goldsboro, North Carolina. On February 1, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race sex, religion, disability, and age (28).2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Regarding Complainant’s age claim, the record reflects that Complainant was under age 40 at the time of the incident in question and thus, is not covered by the ADEA. 2 2022002531 In its final decision dated April 1, 2022, the Agency determined that the formal complaint was comprised of the following claim: On December 28, 2021, [a named Head Bagger] terminated [his] services as a bagger. The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that Complainant is not an employee of the Agency and served as an independent contractor or consultant. The instant appeal followed. In response to Complainant’s appeal, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency reasoned that Complainant had no contract with the Agency or an on-site contractor. The Agency stated that the only remuneration Complainant received for his services was tips from patrons visiting the Commissary. The Agency set forth that Complainant was not under the supervision of an Agency employee, but rather the Head Bagger, who was not an employee of the Agency. ANALYSIS AND FINDINGS The Commission applies the common law of agency test to determine whether an individual is an agency employee versus an independent contractor. Serita B. v. Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016); Ma v. Dep't 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). The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls or has the right to control the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. In assessing the right to control, EEOC does not consider any one factor to be decisive. The Agency properly dismissed Complainant’s complaint for failure to state a claim. The Agency granted Complainant access to the Commissary so he could bag the purchases of customers. According to the record, Complainant reported to a Head Bagger (rather than an Agency employee) who set his schedule and approved his requests for time off. Complainant’s compensation consisted of voluntary tips by customers.3 In addition, the record contains a termination notice for Complainant signed by the Head Bagger. While Complainant’s work was performed at an Agency facility using shopping carts, we do not find that the Agency had sufficient control over his service to qualify as his employer for the purposes of the EEO complaint process. 3 The record contains a form entitled “De Facto Employee Questions” completed by Complainant which contains his responses to questions regarding the services he provided. 3 2022002531 The Commission has on several occasions, considered whether similar commissary Baggers are de facto employees of the Agency, and has decided they were not. See Ciera B. v, Dep’t of Def. (Defense Commissary Agency), EEOC Appeal No. 2019001426 (Nov. 29, 2019); Teddy D. v. Dep’t of Def. (Defense Commissary Agency), EEOC Appeal No. 0120181409 (July 18, 2018); Delphia F. v. Dep’t of Def. (Defense Commissary Agency), EEOC Appeal No. 0120181098 (May 16, 2018). Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 4 2022002531 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations July 7, 2022 Date