01a60474
04-19-2006
Svetlana Crasnitchi, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Svetlana Crasnitchi v. Department of State
01A60474
04-19-06
.
Svetlana Crasnitchi,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A60474
Agency No. F-075-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 22, 2005, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female/pregnancy) when the agency did not extend
her task order to teach Russian for the Foreign Service Institute beyond
November 2005.
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 an independent contractor and
not an agency employee entitled to pursue her claim through the federal
EEO complaint process. EEOC Regulation 29 C.F.R. � 1614.107(a)(1)
provides that an agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that she has been
discriminated against by the agency because of race, color, religion,
sex, national origin, age or disabling condition. See 29 C.F.R. �
� 1614.103, .106(a). Accordingly, a complaint may be dismissed for
failure to state a claim when the complainant is not an employee or
applicant for employment with the federal government.
The Commission has applied the common law theory test to determine
whether complainants are agency employees under laws enforced by
the EEOC. See Ma v. Department of Health and Human Services, EEOC
Appeal No. 01962389 & 01962390 (May 29, 1998)(citing Nationwide
Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)); Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
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 work accumulates retirement benefits; (11) whether
the �employer� pays social security taxes; and (12) the intention of
the parties. See 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.
Here, complainant indicates that she has been a valuable member of the
agency in her teaching position. She alleges that agency officials
elected not to renew her task order once they found out that she was
pregnant. Complainant maintains on appeal that she is treated like
other �direct hire� employees in that she spends 8 hours a day at the
agency with a 45 minute lunch break. Complainant also states that she
works under the direction of two supervisors, has held her position for
3 years and claims to be an integral part of the staff of the agency's
�Russian Section.� However, complainant also states on appeal that
she is paid by the job, receives no paid leave and does not receive
retirement benefits.
The record contains a copy of the contract complainant signed in order
to perform work as a Russian teacher with the agency. The contract
contains the following clause:
�Bidders under this Blanket Purchase Agreement understand that they
are self-employed Contractors and not Government employees. As such,
contractor is responsible for managing their taxes, health insurance,
social security payments, etc. The Government will pay the contractor
based on the hourly rate bid; the contractor is responsible for paying
their personal expenses. The Government will pay no benefits under this
Agreement. Contractors will be issued a task order that will detail
the period of performance their services are required. The award of a
BPA does not necessarily mean that the Government will require the use
of your services.�
The contract also provides the following with respect to payment for
services:
�Contractors will submit invoices bi-weekly for hours worked through
presentation of a Work Schedule and an invoice to the Program Assistant in
the department to which they are assigned. . . . Payment to the Contractor
for hours worked shall be made on the 30th calendar day after either
(1) presentation of an invoice to the Government Technical Monitor, or
(2) the date the services are accepted by the Government.�
Based on the record before us, we find that the complainant is not
an employee. Payment is made for work after submission of an invoice.
No leave is afforded. There are no retirement benefits, and the agency
does not pay social security taxes. Moreover, the contract between
complainant and the agency expressly indicates that complainant is an
independent contractor which indicates that the parties did not intend
an employment relationship.
Therefore, the agency's decision dismissing the instant matter for failure
to state a claim is hereby AFFIRMED for the reasons set forth herein.
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 (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
_____04-19-06_____________
Date