01982998
02-18-2000
Vijay P. Khasat, Complainant, v. Madeline K. Albright, Secretary, Department of State, Agency.
Vijay P. Khasat v. Department of State
01982998
February 18, 2000
Vijay P. Khasat, )
Complainant, )
)
v. )
) Appeal No. 01982998
Madeline K. Albright, ) Agency No. 97-34
Secretary, )
Department of State, )
Agency. )
____________________________________)
DECISION
On February 27, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated January 23, 1998,
dismissing his complaint for failure to state a claim. The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.<1>
The record indicates that complainant filed a formal complaint dated
May 26, 1997, claiming that he was subjected to unlawful employment
discrimination based on national origin (India). Specifically,
complainant alleged he was discriminated against when he was not selected
for the position of Construction Manager of the American Embassy School,
New Delhi, India.
The agency issued a FAD, dismissing the complaint for failure to state
a claim. The FAD stated that complainant was not an employee or applicant
for employment with the agency. Specifically, the agency indicated that
the American Embassy School (AES) in New Delhi is an independent school
and not part of the Department of State.
On appeal, complainant contends that the complaint states a claim.
Complainant argues that the school is not independent, citing the State
Department address included on the AES letterhead and in the job posting.
In response, the agency maintains that, rather than relying on the
school's mailing address, "a more sophisticated analysis" is required.
The agency cites jurisdictional findings by the Commission's Washington
Field Office, conducted in a 1994 case, regarding the same school.
According to the agency, the Field Office relied on the analytical
framework set forth in Fenstermacher v. Department of State, EEOC Request
No. 05930114 (May 26, 1994). In Fenstermacher the Commission examined:
(1) the purpose of the organization, (2) the statutory purpose of the
authority under which the organization was created, and (3) who controls
the organization. Under such framework, the agency argues that the
school's charter, bylaws, and student body support the conclusion that
the school is independent of the agency.
Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.103)) provides that an
agency shall accept complaints of unlawful employment discrimination filed
by employees or applicants for employment. The Commission has repeatedly
held that the test for determining whether an individual may be deemed
an employee under Title VII is set forth in Spirides v. Reinhardt, 613
F.2d 826, 831-832 (D.C. Cir. 1979). See Abramoff v. Department of the
Navy, EEOC Request No. 05940476 (December 22, 1994); Puri v. Department
of the Army, EEOC Request No. 05930502 (March 24, 1994).
In Spirides, the Court stated that "the most important factor to
consider in determining whether an individual may be deemed an employee
of a federal agency is the extent of the agency's right to control the
�means and matter' of the worker's performance." Puri, supra. However,
the Court also indicated that "consideration of all the circumstances
surrounding the work relationship is essential an no one factor is
determinative." Id. Among the factors to be considered are (1) the kind
of occupation, particularly whether the work is usually done under the
direction of a supervisor; (2) the skill required in the occupation; (3)
whether the agency or worker furnishes the equipment used and the place
of work; (4) the length of time the individual has worked; (5) the method
of payment; (6) the manner in which the work relationship is terminated,
i.e., by one or both parties, with or without notice or explanation; (7)
whether annual leave is afforded; (8) whether the work is an integral part
of the business of the agency; (9) whether the individual accumulates
retirement benefits; (10) whether the worker accumulates taxes and/or
pays social security benefits; and (11) the intention of the parties.
Id.; DaVeiga v. Department of the Air Force, EEOC Request No. 05930201
(July 13, 1993).
In the instant case, complainant claimed that he was discriminated against
when he was not selected for the position of Construction Manager of
the American Embassy School in New Delhi, India. The record reflects
that the agency was identified in the job posting, and applicants were
instructed to send their resumes to the Department of State. Further,
the AES letterhead included the agency's address. The agency contends
that although the agency's mailing address is used by the school, it is
not controlled by the agency and is therefore independent.
As previously noted, the most important factor to consider in determining
whether appellant was an applicant for employment with the agency,
pursuant to Spirides, is the extent to which the agency had the right to
control the "means and manner" of the performance of the individual in
the position in question. While the agency contends elements such as the
school's charter, Board of Governors, and the source of funding establish
the school's independence, it has failed to provide such documentation.
Moreover, we find that the agency has not adequately investigated whether
it controlled the "means and manner" of the performance of the individual
in the position in question. We note that it is unclear from the record,
and the agency does not address, the circumstances surrounding the
Construction Manager position. The record does not indicate, for example,
who furnishes the equipment used, the method of payment, whether annual
leave is provided, and whether there is supervision. Because we are
unable to determine whether the agency controlled the "means and manner"
of the individual in the position in question, we cannot determine whether
appellant was an applicant for employment with the agency. Therefore,
we shall remand this matter for a supplemental investigation.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was improper, and is VACATED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER
The agency shall determine whether complainant would have been considered
an employee of the agency, and not AES, if he was to be hired for the
Construction Manager position at issue, in particular whether the agency
had the "employer's right of control" over the subject position, in
light of the factors set forth in Spirides. The agency's determination
shall include supplementation of the record with any affidavits or other
relevant documentation regarding this issue. The agency shall complete
the investigation within thirty calendar days of the date this decision
becomes final. Should the agency determine that it had no "employer's
right of control" over the subject position at issue, the agency shall
issue a final decision within fifteen calendar days from the date that
it completes the supplemental investigation. Should the agency find
that it had the "employer's right of control" over the subject position
at issue, the agency shall issue complainant a notice of processing and
process the subject claim in accordance with the EEOC Regulations.
A copy of the final agency decision and/or the notice of processing 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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
February 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 Equal Employment Assistant
1On 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.