0120100065
05-19-2011
Steven L. Taylor, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Steven L. Taylor,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100065
Agency No. ARFTCAMP08JUL05426
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 28, 2009, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
at the Agency’s facility at Fort Campbell, Kentucky.
On August 12, 2009, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of disability
(diabetes and alcoholism) when, on July 17, 2008, he was terminated
from his position with Colorado State University (CSU). The record
indicates that the Agency has a relationship with the U.S. Department
of Agriculture’s Forest Service by way of a longstanding Memorandum
of Understanding with the Department of Defense.1 The record
further discloses that Colorado State University had a contract with
the Forest Service to support an Agriculture Outlease Program by
mowing and performing general upkeep of the grounds at Fort Campbell,
Kentucky. Complainant performed work at the Agency’s facility at Fort
Campbell pursuant to this agreement.
The Agency dismissed Complainant’s complaint, pursuant to EEOC
Regulation 29 C.F.R. § 1614.107(a)(1),for failure to state a claim.
Specifically, the Agency determined that Complainant was not an Agency
employee and consequently was not entitled to pursue his claim through
the federal EEO complaint process.
ANALYSIS AND FINDINGS
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). Accordingly, a complaint may be dismissed for failure
to state a claim when the complaint is not an employee or applicant for
employment with the federal government.
The Commission has applied the common law of agency test to determine
whether an individual should be considered an agency employee under
29 C.F.R. Part 1614. See Ma v. Dep't of Health & Human Services, EEOC
Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide
Mut. Ins. 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.
Upon review, the Commission finds that Complainant was unable to establish
that he was an employee of the Agency. The record discloses that as
a result of the agreement between the Department of Defense and the
Forest Service and the agreement between the Forest Service and CSU, the
Complainant came to work, as a CSU employee, at Fort Campbell, Kentucky.
During the pre-complaint inquiry conducted by the EEO counselor in this
matter, Agency management indicated that, in early 2008, the Department
of Defense employee who managed the Agricultural Outlease Program was
tasked with the responsibility to reduce Agency costs. Consequently,
the agreement with CSU was terminated. As a result, CSU sent a letter
to Complainant advising him that his work at Fort Campbell was over.
The letter from CSU offered to relocate Complainant or terminate his
employment.
In applying Ma to the facts of the instant case, we agree with the
Agency's finding that Complainant is not an employee of the agency,
but of CSU, a contractor of the Forest Service. On appeal, Complainant
failed to rebut the evidence establishing that he was employed by CSU and
was not an Agency employee. Based on the legal standards and criteria set
forth herein as well as the totality of the circumstances, the Commission
agrees with the Agency's finding that Complainant was not its employee or
job applicant as is defined for the federal sector EEO complaints process.
Accordingly, the Commission AFFIRMS the Agency's decision dismissing
Complainant's complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 (Z0610)
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
May 19, 2011
__________________
Date
1 The record contains a copy of the Memorandum of Understanding dated
March 27, 1963 between the Department of Defense and the United States
Department of Agriculture for the Conservation of Forests, Vegetative
Cover, Soil and Water on Lands Administered by the Department of Defense.
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0120100065
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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