05970406
07-10-2000
Steven M. Lonergan, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Steven M. Lonergan v. Department of Veterans Affairs
05970406
July 10, 2000
Steven M. Lonergan, )
Complainant, )
) Request No. 05970406
v. ) Appeal No. 01963586
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On January 25, 1997, Steven M. Lonergan (the complainant) timely initiated
a request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Steven M. Lonergan v. Jesse Brown,
Secretary, Department of Veterans Affairs, EEOC Appeal No. 01963586
(January 15, 1997).<1> EEOC Regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision
where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
ISSUE PRESENTED
Whether the previous decision properly affirmed the agency's dismissal
of the complainant's complaint.
BACKGROUND
The record reveals that the complainant is a veteran who was honorably
discharged from the Marine Corps in 1982. In 1991, the complainant
was placed by his vocational rehabilitation specialist in a �Chapter 31
Training Program� (unpaid work experience) at the agency's Bay Pines,
Florida, Medical Center. Between December 1991 and November 1992
the complainant worked as a Claims Clerk in that facility's Medical
Administration Service, and then, from October 1993 to February
1994, worked as a Clerk in the facility's Police & Security Service.
The complainant filed a formal complaint in June 1994 in which he
alleged discrimination based on physical disability (seizure disorder)
and reprisal (prior EEO activity) with regard to a variety of incidents
that occurred during his tenure with the agency, including harassment,
a suspension, termination from the rehabilitation program, and failure
to be converted into a full-time position (Issue 1). Additionally,
the complainant alleged that the agency discriminated against him when
it failed to hire him for a full-time position (Issue 2).
In a final decision (FAD) dated June 13, 1995, the agency dismissed the
complaint for failure to state a claim. The complainant appealed and the
prior decision affirmed the FAD. Regarding Issue 1, the decision found
that the complainant was not an employee, but, rather, an unpaid trainee.
As such, the Commission found that the complainant lacked standing to
file a complaint against the agency. The decision found that Issue
2 did not state a claim insofar as the complainant had never actually
applied for a position with the agency.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
In support of his request for reconsideration, the complainant has
submitted documentation which purports to establish that he applied for an
actual position with the agency and that he was an employee of the agency.
Having carefully considered this documentation, the Commission finds that
it is insufficient to support either proposition, and, in particular,
we note that the complainant has still failed to identify a specific
position for which he applied. Furthermore, this documentation does not
demonstrate that the complainant was ever actually employed by the agency.
Accordingly, we find that the complainant's submissions are insufficient
to reconsider the prior decision.
The Commission will, however, exercise its discretion and reconsider
the prior decision on its own motion. 29 C.F.R. � 1614.405(b). That
decision, in finding that the complainant did not have standing to bring
a complaint against the agency, relied on the Commission's decision in
Meador v. Department of Veterans Affairs, EEOC Request No. 05920836
(April 1, 1993). In Meador, we held that an individual who was an
unpaid trainee in one of the agency's rehabilitation programs was not
an employee for purposes of the Commission's jurisdictional authority.
Initially, we note that, unlike the situation in Meador, the record is
more developed regarding the complainant's situation. In particular,
we note that the complainant has been identified as having worked in
two specific positions, and that, like a regular employee, he worked
designated hours in those positions. What this reveals is that,
although the complainant was technically a trainee, there were aspects
of his relationship indicative of an employer/employee relationship.
For that reason, the Commission finds that the appropriate approach in
this case is to consider whether the relationship the complainant had
with the agency satisfies the common law of agency test for an employment
relationship as recognized by the U.S. Supreme Court in Community for
Creative Non-violence v. Reid, 490 U.S. 730, 751-752 (1989) and Nationwide
Mutual Insurance Co. et al. v. Darden, 503 U.S. 316, 323-24 (1992).
In Darden and Reid the Court noted the relevant considerations to be
utilized in determining whether a hired party qualified as an employee
under the common law of agency. The Court cited a number of factors,
including the employing party's right to control the manner and means by
which the product is accomplished; the skill required; the source of the
instrumentalities and tools; the location of the work; the duration of
the relationship between the parties; whether the hiring party has the
right to assign additional projects to the hired party; the extent of the
hired party's discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying assistants; whether
the work is part of the regular business of the hiring party; whether
the hiring party is in business; the provision of employee benefits; and
the tax treatment of the hiring party. Darden, 503 U.S. 323-24, quoting
Reid, 490 U.S. at 751-52. The Court emphasized that the common law test
contained �no shorthand formula or magic phrase that can be applied to
find the answer ... all of the incidents of the relationship must be
assessed and weighed with no one factor being decisive.� 503 U.S. at 324,
quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968).<2>
Having carefully reviewed the record, the Commission notes that the
precise nature of the complainant's tenure with the agency is unclear.
What is apparent, however, is that, for upwards of 14 months, the
complainant worked designated hours at an agency facility. Not only
did the work he perform fall within the parameters of the agency's
regular business, but the agency, as evidenced in part by the three
performance evaluations the complainant was issued, both assigned him
work and controlled the manner in which that work was accomplished.
Although the complainant was not paid an actual salary, he did receive a
monthly stipend through an agency rehabilitation program that was directly
related to his participation in the program. For these reasons, we find
that the agency's control over the complainant and his work product was
such that, under the common law of agency, he should be considered an
employee. Accordingly, it is the decision of the Commission to reverse
the prior decision's dismissal of Issue 1 and remand that portion of
the complainant's complainant for processing.<3>
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission denies the
request but reconsiders the decision on its own motion. The decision
in EEOC Appeal No. 01963586 remains the Commission's final decision,
except as MODIFIED herein. The agency shall process Issue 1 in
accordance with the Order set forth below. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified as 29 C.F.R. �
1614.108). The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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:
__07-10-00_____ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
01 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
02 The Commission notes that it previously applied the test set forth in
Reid and Darden in Maryann Wenli Ma and Bill Wenling Zheng v. Department of
Health of Human Services, EEOC Appeal Nos. 01962390 and 01962389 (May 29, 1998).
03 The Commission finds no basis for disturbing the prior decision's
affirmance of the dismissal of Issue 2 insofar as the complainant never
actually applied for a position with the agency.