Richard J. Pope, Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0120073215 (E.E.O.C. Dec. 10, 2009)

0120073215

12-10-2009

Richard J. Pope, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.


Richard J. Pope,

Complainant,

v.

Ray Mabus,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120073215

Agency No. 0768636002

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 29, 2007, 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., 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. 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.

The record reveals that complainant previously worked as a Contractor

Database Administrator at the NAVSEA Logistics Center, in Yorktown,

Virginia, through Dynamics Research Corporation (DRC).1 In a complaint

dated April 10, 2007, complainant alleged that he was subjected to

discrimination on the bases of sex (male), disability (Generalized

Anxiety Disorder; Heart Attack), and age (57) when, on November 10, 2006,

he was given the option of taking a reduction in pay or being terminated.

By decision dated May 29, 2007, the agency dismissed the complaint,

finding that complainant was not an agency employee, and therefore, he

could not state a claim over which the Commission would have jurisdiction.

The decision considered several factors, including information provided

through witness interviews that he was paid an annual salary from DRC, and

his annual leave, retirement benefits and social security taxes were all

paid for by DRC. In addition, the decision noted that when complainant's

employment was terminated it was by notice of a representative from

DRC.2 Complainant makes no new arguments on appeal.

The Commission agrees that the instant matter fails to state a claim

under EEOC regulations. Before the Commission can consider whether the

agency has discriminated against complainant in violation of Title VII,

we must first determine whether 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. 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)). 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. 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.; see also Harris v. Department of

the Army, EEOC Appeal No. 0120092152 (September 15, 2009).

Based on the legal standards and criteria set forth herein as well as

the totality of the circumstances, we agree with the agency's finding

that complainant has not proven that he was a federal employee or job

applicant. In particular, the fact that the contracting company paid

complainant's salary and benefits, and served complainant with his

termination notice, indicates that he was an employee of the DRC.

Accordingly, we AFFIRM the agency's final decision dismissing

complainant's complaint for failure to state a claim.

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

___12/10/09_______________

Date

1 The record reveals that this is a contracting company located in

Hampton, Virginia.

2 Complainant confirms that "[o]n the 10th of November I was notified

by my Project Manager (Dynamic Research Corp)... who stated that due

to budget cuts pertaining to the SLDCADA project that I would have to

accept a $30,000 year pay cut at the end of the week, or lose my job."

Formal Complaint at I-11.

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0120073215

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073215