01a50035
11-29-2005
X-abian Montsho Jahi, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
X-abian Montsho Jahi v. Department of Commerce
01A50035
November 29, 2005
.
X-abian Montsho Jahi,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A50035
Agency No. 04-51-00097
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 24, 2004, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of religion (Muslim) and in retaliation for unionizing when:
On October 28, 2004, complainant was transferred from one work location
to another; and
On November 24, 2004, complainant was terminated.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. Specifically, the agency
concluded complainant is not an agency employee. The agency stated
complainant was hired, terminated, paid, and granted employee benefits
by Coastal International Security, Inc., (Coastal) and not the agency.
The agency contends that Coastal retained ultimate disciplinary and
supervisory authority over complainant. Moreover, the agency states
that Coastal provides an on-site Program Manager who is responsible for
ensuring that the Special Police Officers are performing all duties as
specified in the contract, and that the Contracting Officer Technical
Representative (COTR), a federal employee, has no control over the means
and manner of complainant's performance. Thus, the agency concluded
complainant failed to establish standing as a federal employee.
The record contains an August 16, 2004 statement from Person A, Project
Manager, stating that Coastal was responsible for issuing complainant's
wages and collecting federal, state, and social security taxes from
complainant's wages. Person A stated that he, a non-federal employee,
was responsible for all special police officers performance on the
contract, including issuing work schedules, directing assignments, and
approving leave. Further, Person A states that Coastal is responsible
for terminating all employees.
The record contains an August 18, 2004 letter from Person B, COTR,
who stated that complainant did not receive federal retirement benefits,
accrue sick or annual leave, or participate in the Thrift Savings Program.
Person B explains that his duties include monitoring the Security Contract
at the agency. Person B states that he did not control the means and
manner of complainant's performance.
Finally, we note that the record contains a November 24, 2003 letter from
the Director of Human Resources at Coastal informing complainant that
Coastal has completed a comprehensive investigation of the allegation that
complainant failed to inspect a vehicle. The letter informed complainant
that the investigation revealed that complainant did not stop a vehicle
in order to conduct an inspection which violated post orders and verbal
instructions of the Project Manager. As a result, the letter stated that
complainant's employment as a security officer with Coastal is terminated.
The Commission has applied the common law of agency test to determine
whether complainants are agency employees under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June
1, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318,
323-24 (1992)). 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 usually is 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 id.
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. The Commission
in Ma also noted that prior applications of the test established in
Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), using many of the
same elements considered under the common law test, was not appreciably
different from the common law of agency test. See id.
Upon review, we find that the record supports the agency's determination
that complainant was not an employee of the agency at the time of the
alleged discrimination. Complainant does not dispute that his salary
was directly paid by the contractor Coastal rather than by the agency.
Complainant has failed to refute the agency's position that it was
Coastal that provided him with annual and sick leave and other benefits.
Additionally, we note that in both his formal complaint and in a November
3, 2003 letter to the agency, complainant states that he was contracted
as a security officer to work at the agency. Further, the record
reveals that Coastal solely had the authority to terminate complainant's
employment. Moreover, we find that the agency was not a joint employer of
complainant in light of it not having sufficient control over the means
and manner of complainant's work. See Enforcement Guidance: Application
of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997).
Based on the record, we find that complainant was not an agency employee.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2005
__________________
Date