0120090041
02-25-2009
Troy Patton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Troy Patton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090041
Agency No. 2003-0549-2008102016
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 27, 2008, dismissing his 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.
During the relevant time, complainant was a Certified Pharmacy Technician
through a corporate entity identified as Top Echelon Contracting,
Inc. (hereinafter referred to as "Top Echelon"). Complainant worked
for the agency's Veterans Affairs, Consolidated Mail Outpatient Pharmacy
(CMOP) in Dallas, Texas. Complainant was terminated from his contractor
assignment effective September 26, 2007. Following his termination,
complainant was an applicant for the position of Pharmacy Technician,
GS-661-06, advertised under Vacancy Announcement No. 07-EN-365 which is
the subject of the instant appeal.
On March 3, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On June 18, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of sex and in reprisal for prior EEO activity when:
(a) on November 27, 2007, management failed to hire him to the position
of Pharmacy Technician, GS-661-06, advertised under Vacancy Announcement
No. 07-EN-365;
(b) on September 26, 2007, Top Echelon terminated him from his contractor
assignment; and
(c) on or about February 17, 2006, management failed to hire him for a
Pharmacy Technician position.
In its August 27, 2008 final decision, the agency dismissed claim (a)
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO
Counselor contact. The agency determined that complainant's initial
EEO contact occurred on March 3, 2008, which it found to be beyond the
45-day limitation period. The agency determined that complainant was
aware of the time limitations.
Regarding claim (b), the agency dismissed it for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). The agency determined
that complainant was not a Federal employee, and that he was instead a
contractor, not covered by Title VII.
Regarding claim (c), the agency dismissed it on the grounds of raising
the same claim that is pending before or has been decided by the agency
or the Commission, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the agency stated that complainant raised the same claim in a prior EEO
complaint, identified as Agency Case No. 2003-0549-2006101422. In that
prior complaint, complainant claimed that he was the victim of unlawful
employment discrimination when on February 17, 2006, management failed
to hire him for the position of Pharmacy Technician.
Claim (a)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Here, complainant did not contact an EEO Counselor until more than 45 days
after the incident in question. We find that the alleged discriminatory
event occurred on November 27, 2007, but that complainant did not initiate
contact with an EEO Counselor until March 3, 2008, which was beyond
the forty-five (45) day limitation period. The Commission determines
that complainant provides no persuasive justification for the delay in
initiating EEO Counselor contact. Therefore, we find that the agency
dismissed claim (a) for untimely EEO Counselor contact.
Claim (b)
A review of the record reflects that according to a contract between Top
Echelon and the agency, Top Echelon agreed to provide pharmacists and
certified pharmacy technician for the agency's CMOP. The record contains
a document titled "Top Echelon Contracting Site-Specific Policies."
Therein, Echelon monitored the performance of its employees, including
complainant; effected any disciplinary actions; dealt with conduct issues.
The record reflects that Top Echelon also paid its employees, including
complainant, salary, provided them with benefits and leave, and withheld
their taxes.
The record also contains a copy of complainant's termination letter dated
November 26, 2007. Therein, the Human Resources Assistant (HR Assistant)
of Top Echelon informed complainant that his termination was effective
September 26, 2007. The HR Assistant also informed complainant that if he
has "benefit coverage through Top Echelon Contracting, such as dental,
vision, 401(d), etc., you may receive notices with the continuation
options related to those benefits, if applicable. These notices will be
sent to your last known home address on file." Furthermore, the record
in the case reflects that during the EEO counseling process, complainant
identified himself as a former contractor employee of the agency.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. 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 extend 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
particulate 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 of 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 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).
Based on these legal standards and criteria, we find that the agency did
not exercise sufficient control over the complainant's position to qualify
as the employer or joint employer of complainant. See generally, Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Thus, we find that the agency properly dismissed claim (b) for failure
to state a claim.
Claim (c)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 2006) rev'd on other grounds. EEOC Request No. 05960524
(April 24, 1997).
The Commission notes that the record contains a copy of its decision
affirming the agency's June 20, 2007 final order implementing a
decision without a hearing, finding no discrimination, issued by an
Administrative Judge (AJ). Patton v. Department of Veterans Affairs,
EEOC Appeal No. 0120073521 (October 16, 2007). Therein, the AJ found
that complainant was not discriminated against on the bases of age when
on February 17, 2006, management failed to hire him for the position of
Pharmacy Technician. We determine that claim (c) and the above referenced
complaint involve the same non-selection. Therefore, we find that the
agency properly dismissed claim (c) for stating the same claim.
Accordingly, we AFFIRM the agency's dismissal of the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
February 25, 2009
__________________
Date
2
0120090041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090041
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