01986549
03-04-1999
Colleen Murphy, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Colleen Murphy v. Department of Health and Human Services
01986549
March 4, 1999
Colleen Murphy, )
Appellant, )
)
v. ) Appeal No. 01986549
) Agency No. IHSC-078-98
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 final agency decision was dated July 29, 1998.
The appeal was postmarked August 26, 1998. Accordingly, the appeal is
timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
The record indicates that appellant, a Senior Clinical Specialist at the
agency's Alaska Native Medical Center (ANMC) hospital, filed a formal
complaint dated June 8, 1998, alleging discrimination based on sex
(female) and race (White) when since October 1994, she was subjected
to harassment concerning work assignments, working conditions, and
disciplinary actions on numerous occasions. Appellant also alleged
that on February 13, 1998, she was not offered a contract/job with South
Central Foundation (SCF) in its takeover of the ANMC hospital's primary
care program. In the complaint, appellant included a six-page chronology
of numerous allegedly discriminatory events which occurred from October
1994 to June 1998.
On July 29, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. In the decision,
the agency addressed only six events, which occurred on October 28,
1997, January 30, 1998, and May 6, 19, and 25, 1998, including the
denial of a job offer with SCF on February 13, 1998, as the allegations
in the complaint. The agency stated that since SCF, which took over
the ANMC hospital's primary care program, was a tribal enterprise,
the agency lacked any jurisdiction over the SCF's hiring practices.
The agency did not address its basis of the dismissal of the other five
allegations defined in the decision. The agency also did not address
the remaining allegations raised in the complaint, other than the six
allegations cited in the decision.
On appeal, appellant, through her attorney, contends that the agency,
in its final decision, failed to addressed all of the allegations in
the complaint which occurred from October 1994 through June 1998.
The attorney further contends that with regard to the allegation
concerning the denial of a job offer with SCF, the agency has jurisdiction
concerning the matter since SCF is a U.S. Government contractor, who is
covered under Title VII. Specifically, the attorney indicates that the
contract for five male doctors and one female doctor, who were given job
offers with SCF when appellant was not, specifies that those doctors
will remain employees of the federal government for two years and all
agency rules, regulations, and policies will apply to them.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
Under EEOC Regulation 29 C.F.R. �1614.103(c), the EEO complaint process
covers only aggrieved "employees" and applicants for employment. The test
for determining whether an individual is an employee under Title VII
is set forth in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979).
In that case, the court stated that a determination of whether an
individual is an employee or an independent contractor for purposes of
Title VII involves an analysis of the economic realities of the work
relationship. The test requires the application of general agency law
principles to established or undisputed facts. The court stated that the
most important factor to consider is the employer's right of control.
Also considered are such factors as the kind of occupation, the skill
required in the occupation, whether the employer or the individual
furnishes the equipment used and the place of work, the length of time
the individual has worked, the method of payment, the manner in which
the work relationship is terminated, whether annual leave is afforded,
whether the work done is an integral part of the employer's business,
whether the individual accumulates retirement benefits, and whether the
employer withholds taxes and/or pays social security benefits. See also
Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985) (applying Spirides' analysis
to cases involving government agencies) and Garrett v. Phillips Mills,
Inc., 721 F.2d 979 (4th Cir. 1983) (applying Spirides' analysis to ADEA
cases).
In one of the allegations in her complaint, appellant indicated that on
February 13, 1998, she was denied a contract with SCF. The agency, in
its decision, stated that it lacked jurisdiction over the matter since
SCF was a tribal enterprise which was not covered under Title VII.
We note that the subject allegation would be within the jurisdiction
of the agency for the purpose of Title VII if under the Spirides test,
appellant was an employee of the agency, and not SCF, if she were to be
given the SCF contract on February 13, 1998. Specifically, the agency
must have the "employer's right of control" over the subject contract
as there was in Spirides. However, there is no evidence in the record
in order to determine whether the agency had the "employer's right of
control" over the subject contact. Thus, the record is insufficient
for us to determine whether the subject allegation stated a claim.
Therefore, the agency is Ordered, as stated below, to conduct a
supplemental investigation concerning the matter.
Turning to the allegations which occurred on October 28, 1997, January
30, 1998, May 6, 19, and 25, 1998, concerning working conditions, an
admonishment, and appellant's attending an award ceremony, the agency,
in its final decision, merely stated that the agency had no jurisdiction
over the matters since SCF was not covered under Title VII. After a
review of the record, we find that the subject allegations involved events
which occurred at the ANMC hospital while appellant was working there.
There is no evidence in the record to show that SCF was involved with the
alleged incidents. Since the subject allegations involved conditions
and/or privileges of appellant's employment within the agency, we find
that the subject allegations stated a claim.
With regard to the remaining allegations in the complaint, we find
that the agency failed to address them in its final decision. Since we
consider the agency's omission of allegations as the dismissal of such, we
find that the agency failed to provide proper grounds for such dismissal
under the regulations. See 29 C.F.R. �1614.110. Therefore, we find
that the agency's decision dismissing those allegations by failing to
address them was improper.
CONCLUSION
The agency's decision to dismiss the allegation concerning the denial
of a contract with SCF for failure to state a claim is VACATED and the
subject allegation is REMANDED for the further processing in accordance
with the Order, set forth below. The agency's decision to dismiss the
remaining allegations in the complaint, which occurred from October 1994
to June 1998, for failure to state a claim and/or for failure to address
them in its final decision was improper and the subject allegations are
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
With regard to the allegation concerning the denial of a contract with
SCF on February 13, 1998, the agency shall determine whether appellant
would have been considered an employee of the agency, and not SCF, if
she were to be hired for the subject position at issue, in particular
whether the agency had the "employer's right of control" over the subject
position, in light of the factors set forth in Spirides. The agency shall
complete the investigation within thirty (30) calendar days of the date
this decision becomes final. Should the agency determine that it had
no "employer's right of control" over the subject position at issue,
the agency shall issue a final decision within fifteen (15) calendar
days from the date that it completes the supplemental investigation.
Should the agency find that it had the "employer's right of control"
over the subject position at issue, the agency shall issue appellant a
notice of processing and process the subject allegation in accordance
with the EEOC Regulations.
A copy of the final agency decision and/or the notice of processing must
be sent to the Compliance Officer as referenced below.
With regard to the remaining allegations in the complaint which occurred
from October 1994 to June 1998, other than the nonselection allegation,
described above, the agency shall process the subject allegations in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the subject allegations within thirty
(30) calendar days of the date this decision becomes final. Thereafter,
the agency shall issue to appellant a copy of the investigative file and
also shall notify appellant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory. The
agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report
shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations