0120080095
12-07-2007
Selena S. Gooden, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention), Agency.
Selena S. Gooden,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120080095
Agency No. HHS-CDC-0059-2007
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated August 31, 2007, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On March 28, 2007, complainant filed the instant formal complaint. Therein, complainant claimed that she was subjected to discrimination on the bases of sex, disability, parental status and in reprisal for prior EEO activity when:
she was terminated from her position as a System Analyst III with Emergint Technologies (ETI) effective October 27, 2006.
The record reflects during the relevant time, complainant was a System Analyst III through a corporate entity identified as Emergint Technologies (ETI), a subcontractor of Northrop Grumman Corporation (hereinafter referred as "Northrop") which has a seven-year contract with the agency. The record further reflects that complainant worked at the agency's National Center for Public Health Information, Coordinator Center for Health Information and Service, Department of Shared Services in Atlanta, Georgia.
In its August 31, 2007 final decision, the agency dismissed complainant's complaint pursuant to regulation set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency determined that complainant was not a federal employee. Specifically, the agency determined that complainant was a contract employee of ETI, and working as a subcontractor for Northrop. The agency further determined that a review of the record indicates that under the terms of the contract with the agency, Northrop controlled the means and manner of complainant's performance; directed complainant's duties; and supervised complainant. Furthermore, the agency determined that the record indicates that ETI paid complainant's salary; and provided her with life insurance, benefits, annual and sick leave.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee or applicant for employment within the meaning of Section 717(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16(a) et. seq. See Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June 1, 1998) (citing Nationwide Mutual Insurance Co. et al 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 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. 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"), we have also recognized that a "joint employment" relationship may exist where both the agency and the "staffing firm" may be deemed employers. 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 Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
The agency has not provided sufficient evidence in the record addressing whether complainant should be considered an employee or joint employee of the agency. The Commission acknowledges that the record contains copies of the contract between the agency and Northrop (Contract No. 200-2004-03409) and a document titled "Statement of Work." However, the Commission determines that the agency has not provided evidence or analysis concerning the factors in the common law of agency test. In particular, the agency has not addressed the means and manner of control complainant's supervisor maintained over the conditions of complainant's day-to-day work at the agency. Given the present record, the Commission is unable to ascertain whether or not the agency has jurisdiction. The Commission shall remand the matter so that the agency can supplement the record with evidence addressed the common law of agency test as described in Ma and Baker.
Accordingly, the agency's dismissal of the complaint is VACATED and we REMAND the complaint to the agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) days after the date this decision becomes final, the agency is ORDERED to take the following action:
The agency shall supplement the record with evidence which shows whether complainant was an employee of the agency using the common law of agency test as defined in Ma, EEOC Appeal No. 01962390, and Baker, EEOC Appeal No. 01A45313, and identified in this decision. Thereafter, the agency shall determine whether complainant was an employee of the agency and whether the instant complaint states a claim of discrimination under 29 C.F.R. � 1614.403 or 1614.106(a).
Thereafter, the agency shall either issue a letter to complainant accepting the complaint for investigation or issue a new decision dismissing the complaint.
A copy of the agency's letter accepting the complaint for investigation or a copy of the new decision dismissing the complaint must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. 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
December 7, 2007
__________________
Date
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0120080095
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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