01995741
03-08-2001
Robert McKernan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Robert McKernan v. Defense Commissary Agency
01995741
03-08-01
.
Robert McKernan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01995741
Agency No. 99-DEAN-AE-020
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final
agency decision, concerning his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon
review, the Commission finds that complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
ISSUE PRESENTED
The issue herein is whether the agency properly dismissed complainant's
complaint based on a finding that complainant was not an employee of
the agency nor an applicant for agency employment.
BACKGROUND
Complainant filed a formal complaint in which he alleged discrimination on
the basis of disability (physical [unspecified] and mental retardation)
when he was denied employment as a Bagger at the Tobyhanna Army Depot
Commissary (Commissary) on November 23, 1998. Complainant submitted
multiple applications for the position of Bagger, and, on November 23,
1998, complainant went to the Commissary with a job coach. At that time,
complainant was told by the Head Bagger that he would be contacted for
a job interview after his security clearance process was completed;
however, after more than a month had passed, complainant learned that
individuals were actively being recruited for Bagger positions.<1>
After returning to the Commissary to tryout for a Bagger position as
part of precomplaint counseling, complainant filed a formal complaint
on April 9, 1999, when the agency failed to hire him.
In its final decision, the agency dismissed complainant's complaint for
failure to state a claim. Specifically, the agency found that complainant,
an applicant for a Bagger position, was not an agency employee nor
an applicant for agency employment. It is from this decision that
complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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; � 1614.106(a). Claims against agencies made by independent
contractors, however, fail to state a claim. See Mallory v. Environmental
Protection Agency, EEOC Request No. 05950142 (April 12, 1996). Thus,
before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of the Rehabilitation Act,
we must determine whether complainant is an agency employee or applicant
for employment.
The issue in this case is whether the Bagger position which complainant
sought is a position of employment with the agency or more akin to
an independent contractor. 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 Request No. 01962390 (June 1, 1998)(citing Nationwide
Mutual Insurance Co. et. al. v. Darden, 503 U.S. 318, 323-24 (1992)).
This same test applies to claims brought under the Rehabilitation Act.
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 is usually 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 v. Department of
Health and Human Services, supra.
Under the terms of the Agreement between the Baggers and the Commissary,
Baggers expressly acknowledge that they are not employees of the
Commissary and are not under the supervision, direction or control
of any employee of the Commissary. Furthermore, Baggers only receive
remuneration from tips provided by patrons. The Commissary does not
provide Baggers any compensation, directly or indirectly, nor does it
deduct taxes from the Baggers' earnings or provide Baggers with any type
of employee benefits, such as an employer pension, health or other fringe
benefit plan of the Commissary. The Head Bagger, not the Commissary,
establishes the work schedules for Baggers. Moreover, either party
may terminate the Agreement effective immediately upon the giving of
reasonable notice of termination for cause. The fact that the agency
may hold some minimal control over the manner and means of baggers'
work performance does not render baggers employees of the agency when
balanced against the findings listed above. For the foregoing reasons,
the Commission finds that complainant is not an applicant for a position
considered to be agency employment, and therefore, does not state a
claim.
CONCLUSION
Accordingly, the Commission holds that the agency's decision to dismiss
complainant's formal EEO complaint for failure to state a claim was
proper, and is therefore, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___03-08-01_______________
Date
1The Agreement between the Baggers and the Commissary provides that
Baggers are not employees of the Commissary and are not under the
supervision, direction or control of any employee of the Commissary,
but rather independent contractors who work for themselves under the
direction of a Head Bagger. The Baggers elect the Head Bagger who is
responsible for hiring new Baggers, as well as for establishing the work
schedules for Baggers.