William Ackley, Complainant,v.Carol M. Browner, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01a01626 (E.E.O.C. May. 19, 2000)

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.