01a01626
05-19-2000
William Ackley, Complainant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
William Ackley, )
Complainant, )
)
v. ) Appeal No. 01A01626
) Agency No. 990049R5
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated November 10, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791
et seq.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405), the Commission accepts the complainant's appeal
from the agency's final decision in the above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to state a claim.
BACKGROUND
The record reflects, that for the relevant period in question, complainant
worked under the Senior Environmental Employment Program (SEE) for the
Environmental Protection Agency (EPA). During this period, the National
Counsel of Senior Citizens (NCSC) was a grant recipient. On August 14,
1998, complainant was removed from his position. Specifically, the
EPA chose not to renew their agreement with SEE granting complainant
employment.
Believing that he was the victim of discrimination, complainant initially
challenged his removal before a State agency in Wisconsin. However,
complainant, and his attorney, were informed by the State agency, that
because complainant was a Federal employee, they lacked jurisdiction to
hear his claim. At this point, the State agency referred complainant
to the appropriate EEO office.
On February 1, 1999, complainant, convinced he was the victim of
discrimination, initiated contact with an EEO counselor. During the
counseling period, complainant stated, that on August 14, 1998, he
was removed from his position. On March 24, 1999, complainant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of his national origin (Native American), age
(forty and over), and disability (physical). The formal complaint was
comprised of the matter for which complainant underwent EEO counseling,
discussed above.
On November 10, 1999, the agency issued a final agency decision (FAD)
dismissing the aforementioned complaint for failure to state a claim.
Specifically, the agency found that complainant was an independent
contractor, and therefore he was not protected under EEOC regulations.
In the FAD, the agency explained that complainant was an independent
contractor that worked for the NCSC as opposed to the EPA.
During the pre-complaint inquiry, the following facts concerning
complainant's employment were discovered:
Complainant received his paychecks from the NCSC;
Unemployment insurance was to be paid by the NCSC;
The EPA did not directly supervise complainant. Rather, complainant
regularly submitted activity reports and the supervisor assigned him
by the EPA just signed off on complainant's administrative paperwork;
Complainant was entitled to annual leave and sick leave by NCSC; and
Complainant was entitled to the same holidays that his assigned agency
observes.
Furthermore, the record contains a letter dated October 20, 1998, from
the NCSC responding to complainant's inquiries regarding his former
assignment to the SEE. The NCSC indicates that complainant was an
�enrollee� and pursuant to a Cooperative Agreement between the NCSC and
the agency, the NCSC annually inquires whether the agency wants to renew
the enrollment agreement for each �enrollee.� The NCSC indicates that
the agreement sets for the terms and conditions of the SEE, as well as
setting forth that an SEE enrollee is not a Federal employee.
ANALYSIS AND FINDINGS
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-16(a).
Section 717(a) provides in relevant part that "[a]ll personnel actions
affecting employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination based on race,
color, religion, sex, or national origin." Thus, Section 717(a) expressly
prohibits discrimination by federal agencies against "employees" and
"applicants for employment." Section 717(a) does not expressly prohibit
discrimination by federal agencies against independent contractors.
Therefore, complainant is protected from discrimination by the agency by
Title VII only if he may be deemed an employee of the agency or applicant
for employment with the agency.
The Commission has held that it will apply the common law of agency
test in order to determine whether the complainants should be deemed
to be �employees� under section 717 of Title VII. 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 is usually 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. See Zheng v. Department
of Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998);
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)). In Ma, the Commission also noted that
the common-law test contains, �no shorthand formula or magic phrase that
can be applied to find the answer.... Instead, all of the incidents of
the relationship must be assessed and weighed with no one factor being
decisive.�
In the present case, the Commission finds that complainant was not
an employee of the EPA. As stated above, complainant received his
pay from the NCSC, received both annual and sick leave from NCSC, his
unemployment insurance was to be paid by NCSC, and he was to receive the
same holidays as the assigned agency. In addition, the record reveals,
that complainant did not have direct supervision by an agency supervisor,
but rather the appointed agency official just signed off on complainant's
administrative paperwork when complainant submitted regular activity
reports. Further, according to the NCSC, the agreement between the
NCSC and the agency provides that enrollees in the SEE were not to be
considered Federal employees. Therefore, it appears that complainant
was not a Federal employee and the agency's decision dismissing the
present case for failure to state a claim was proper.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 19, 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 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.