0120121318
06-15-2012
Carolyn Casiana, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Carolyn Casiana,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120121318
Agency No. DOI-FWS-11-0580
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 5, 2012, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served as contractor performing custodial duties at the Agency's Havasu National Wildlife Refuge in Needles, California. The Agency contracted directly with her to provide these services. Complainant performed these duties every second Thursday, working 2 to 3 hours each time she came. On October 26, 2011, she filed a formal complaint alleging that she was discriminated against based on her disability and age (66) when she received a letter by the Agency in June 2011, advising her that her cleaning service contract would not be renewed. Her last performance date was September 22, 2011.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 16143.107(a)(1). It reasoned that Complainant was not an employee of the Agency.
On appeal Complainant submits documentation from the EEO processing of her case, and argues that she was a victim of discrimination.
In opposition to the appeal, the Agency argues its dismissal should be affirmed.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't. of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. 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 work accumulates retirement benefits;
(11) whether the employer pays social security taxes; and
(12) the intention of the parties.
See Ma v. Dep't of Health and Human Serv., supra.
Not all or even a majority of the listed criteria need be met. The above factors are designed to determine whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
Factors (3) - (5) Indicate that Complainant May Be an Employee
Custodial work does not require a high level of skill or expertise (factor 3). While factor 4 points to Complainant being an employee since she worked on Agency premises, it does not strongly do so because under the contract Complainant provided all equipment and materials required to perform custodial services, including trash can liner bags, and if she cleaned restrooms, restroom supplies, such as toilet paper. Complainant started providing custodial services for the Agency in 2006, indicating a continuing relationship (factor 5).
Factors (1), (2), (6), and (8) through (12) Indicate that Complainant is not an Employee
Under the contract Complainant provided all equipment, tools, materials, supervision and other necessary items to perform custodial services. She does not dispute this occurred.1 Further, while the contract sets forth the specifications for cleaning in detail, it gave Complainant flexibility on when she cleaned (anytime outside normal business hours of 7:30 AM to 5 PM).2 The contract provided that any changes to its terms and conditions could only be made by written agreement of the parties, and Complainant does not contend this was violated, such as being given assignments outside the contract (factor 1). Under the contract Complainant was to supervise her own services, and she does not dispute this occurred (factor 2). The total award amount for the most recent contract was $1,620 for the year, payable in installments upon receipt of invoices from Complainant describing the service she provided (factor 6). Complainant did not receive annual leave, did not accumulate retirement benefits, and the Agency did not pay social security taxes (factors 8, 10, and 11). Janitorial services are not an integral part of the Agency's mission (factor 9). The contract refers to Complainant as a contractor. While Complainant did not state her intention, given that the janitorial services she provided under the contract were only once every two weeks for two or three hours, that she had to supply all her own equipment, material and supplies, and the method of payment and lack of benefits, we find the parties intended to create a contractor relationship (factor 12).
The Agency exercised its option not to renew the contract, effectively terminating Complainant's services. Generally, Agency discharge power points toward an employment relationship (factor 7). EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, at 2-26 (May 12, 2000) (available at www.eeoc.gov. But we find that in this case factor 7 does not point in any direction. While the Agency had the power to terminate/not renew the contract and cease its working relationship with Complainant, she only performed services for the Agency once every two weeks for two or three hours. Assuming she had a number of other clients, the Agency had no power to discharge Complainant, as such. Cf. International Union v. Clark, 2006 WL 2598046, 18 A.D. Cases 932 (D.D.C. 2006), EEOC Appeal No. 0120090933 (United States Marshals Service power to decide whether a particular Court Security Officer (CSO) could be removed from the contract for failure to meet the qualifications of the job was tantamount to removal power since an adverse agency determination against the CSO in most cases resulted in termination by the contractor). Factor 7 is neutral because the record does not reflect whether or not Complainant had a number of other clients.
Based on the legal standards and criteria set forth herein, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process. See Friedman v. Department of the Army, EEOC Appeal No. 0120121009 (May 31, 2012) (affirming the agency's finding that complainant, who provided cleaning services under contract, lacked standing to file an EEO complaint because she was not a federal employee).
CONCLUSION
The Agency's dismissal of Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
June 15, 2012
__________________
Date
1 Complainant referred to having an Agency "boss," but did not provide any details indicating she was supervised.
2 Complainant suggested that the Agency gave her additional flexibility, i.e., she wrote that she performed her janitorial services from 8 AM to 10 AM.
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0120121318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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