01992527
04-12-2000
William W. Mih, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
William W. Mih, )
Complainant, )
)
v. ) Appeal No. 01992527
) Agency No. F-97-5052
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Complainant filed the instant appeal from a decision dated January 13,
1999 dismissing complainant's complaint (alleging that complainant was
terminated from the agency in September 1995 on the basis of his age)
for failing to state a claim is proper pursuant to the regulation set
forth at 64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)).<1>
The agency found that complainant was not an employee of the agency.
The agency found that:
[Complainant was] a source of information for the FBI [Federal Bureau
of Investigation] from 1984 through 1995. [Complainant was] remunerated
solely for providing information. In March, 1992 [complainant] relocated
and [was] no longer in a position to provide information of value.
Therefore, [complainant's] payments were decreased and finally,
[complainant was] closed as a source in September, 1995. . . .
[Complainant's] status as a source indicates that the extent to which
the FBI had a right to control the means and manner of [complainant's]
performance did not rise to the level affording [complainant] the
protections of an �employee� under the ADEA. Moreover, [complainant]
did not work in FBI office space, nor did the FBI otherwise provide
[complainant] office space or equipment; [complainant] did not receive
a salary, but [was] paid in cash based on the information [complainant]
provided; [complainant was] not afforded employee benefits, including
annual leave and retirement; the FBI paid no social security taxes on
[complainant's] behalf . . .
In view of the above, [complainant does] not have standing to file a
complaint of discrimination because [complainant was] not at any time
an employee of the FBI within the meaning of the ADEA.
Complainant argues that he was an employee of the agency because the
agency controlled the means and manner of his employment.
In order to determine whether an individual is an employee under
Title VII, "the Commission will apply the common law of agency test,
considering all of the incidents of the relationship between the
[complainant] and the agency . . ." Ma and Zheng v. Department of
Health and Human Services, EEOC Appeal Nos. 01962390 and 01962389
(June 1, 1998). In Ma the Commission held that "the application of the
Spirides [Spirides v. Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979)]
test has not differed appreciably from an application of the common law
of agency test." Id. (citation omitted).
In Ma the Commission described the common law of agency test as follows:
In [Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, (1992)], the
Court adopted the factors listed in [Community for Creative Non-Violence
v. Reid, 490 U.S. 730, 751-752 (1989)], as part of the common-law test
for determining who qualifies as an "employee" under ERISA: the hiring
party's right to control the manner and means by which the product is
accomplished; the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the
tax treatment of the hired party. 503 U.S. at 323-324. The Court also
referenced the Restatement (Second) of Agency �220(2)(1958) as listing
nonexhaustive criteria for identifying a master-servant relationship,
and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20 factors
as guides in determining whether an individual qualifies as a common-law
"employee" in various tax law contexts. The Court emphasized, however,
that the common-law test contains "no shorthand formula or magic phrase
that can be applied to find the answer, . . . all of the incidents of
the relationship must be assessed and weighed with no one factor being
decisive." 503 U.S. at 324, quoting NLRB v. United Ins. Co. Of America,
390 U.S. 254, 258 (1968).
Ma, EEOC Appeal No. 01962390.
We note that, although not dispositive of the issue, complainant referred
to himself in written correspondence as a �consultant� to the agency.
On appeal, the agency argues (citations omitted):
At the outset of his relationship with the FBI, [complainant] was told
that he was not an employee of the FBI. At no point did [complainant]
enjoy the privileges of FBI employment beyond compensation for services
rendered. [Complainant's] sole task was to provide information.
While security guidelines were imposed on the [complainant], these
guidelines were not sufficient to conclude that the FBI exercised
control over the means and the manner in which [complainant] obtained
information to present to the FBI. [Complainant] was not required to
work at set intervals of time, nor account for his hours during the day.
He was free to choose the manner in which he made contacts with subjects
he reported on. . . .
[I]t is clear that the degree of control exercised over [complainant]
was not significant enough to deem [complainant] an employee within the
meaning of the ADEA.
The Commission finds that the evidence, in the form of a statement from
an agency employee who was complainant's �contact agent� with the FBI,
supports the agency's findings. The Commission finds that under the
common law of agency test as described in Ma, complainant was not an
employee of the agency. Therefore, we find that the complaint does not
state a claim.
The agency's decision dismissing the complaint is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 12, 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 Assistant1On 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.