0120110324
03-16-2011
Darrell E. LaVallie, a.k.a. Darell E. LaVallie, Sr. Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (Indian Health Service) Agency.
Darrell E. LaVallie,
a.k.a. Darell E. LaVallie, Sr.
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(Indian Health Service)
Agency.
Appeal No. 0120110324
Agency No. HHSIHS04662010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Decision) dated September 29, 2010, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Eligibility Specialist at the Agency's Quentin N. Burdick Memorial
Healthcare Facility in Belcourt, North Dakota. On September 7, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of national origin (American Indian,
Turtle Mountain Chippewa), sex (male), color (dark complexion), disability
(partial paralysis, deaf in one ear), and reprisal for prior protected
EEO when:
1. Since an unspecified date, Complainant has been subjected to a hostile
work environment including being asked to fill out forms he had previously
filled out, being removed from a training program, being moved from a
private office to an open public area, being asked to assist a patient
who needed the restroom, and that his supervisor had to start faxing
Complainant's time sheets to Vocational Rehab.
2. On an unspecified date, Complainant's work contract was terminated.
The Agency found that Complainant was only making a reprisal claim and
did not specifically describe Complainant's allegations. The Agency
dismissed the claim for failure to state a claim because Complainant was
not a Federal employee or applicant for Federal employment, but rather
was placed at the Agency through a vocational rehabilitation program. On
appeal, Complainant argues that he was "treated as a contract employee."
The Agency has presented no argument on appeal.
ANALYSIS AND FINDINGS
As an initial matter, we note that, contrary to the Agency's Decision
which states that Complainant is only making a claim of reprisal, the
Formal EEO complaint in this matter shows that Complainant is in fact
making claims of discrimination based on color, disability, national
origin, and sex, as well as reprisal.
The Agency found that the complaint in this matter should be dismissed for
failure to state a claim because Complainant is not a Federal employee
or applicant, or may be considered a Federal employee or applicant for
the purposes of this complaint.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of
employment discrimination shall be processed in accordance with Part
1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c)
provides that within the covered departments, agencies and units, Part
1614 applies to all employees and applicants for employment. Thus,
it must first be determined whether Complainant is an Agency employee
or is connected to the Agency with "aspects of the relationship that are
indicative of an employer/employee relationship." Longergan v. Department
of Veterans Affairs, EEOC Request No. 05970406 (July 10, 2000).
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee under Title VII. See Ma
v. Department of Health and Human Services, (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;" (1.0) whether the
worker accumulates retirement benefits; (11) whether the "employer" pays
social security taxes; and (12) the intention of the parties. See Ma,
supra. In Ma, the Commission noted that the common-law test contains,
"no shorthand formula or magic phase 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.
Furthermore, under the Commission's 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)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov),
we have also recognized that a "joint employment" relationship may exist
where both the agency and the "staffing firm" may be deemed employers.
Similar to the analysis set forth above, a determination of joint
employment requires an assessment of the comparative amount and type
of control the "staffing firm, and the agency each maintain over
complainant's work. Thus, a federal agency will qualify as a joint
employer of an individual if it has the requisite means and manner of
control over the individual's work under the Ma criteria, whether or not
the individual is on the federal payroll. See Guidance, supra at 11.
In the present case, the Agency has not addresses any of the relevant
factors and hence based on the instant record, the Commission is unable
to determine whether the Agency exercised sufficient control over
complainant's position to qualify as his employer, or joint employer.
The Agency must substantiate the bases for its final decision. See
Marshall v. Department of the Navy, EEOC Request No. 05910685 (September
6, 1991).
Accordingly, the agency's decision to dismiss Complainant's complaint
was improper, and is hereby VACATED. The complaint is REMANDED to the
agency to supplement the record and analyze Complainant's position with
the agency in light of the factors cited in Ma, and other factors listed
above, in accordance with the ORDER below.
ORDER
The Agency is ORDERED to conduct a supplemental investigation to determine
whether or not it was Complainant's employer for the purposes of 29
C.F.R. Part 1614. The investigation shall focus on the factors set forth
in Ma, including the extent to which Agency management controlled the
"means and manner" of Complainant's work. The evidentiary record of this
investigation shall be placed in the record, including, but not limited
to, affidavits from Complainant and Agency management who worked with her
addressing the relevant Ma factors. Thereafter, the Agency shall either
issue a final decision dismissing the complaint with an adequate written
justification or a letter accepting the complaint for investigation. The
supplemental investigation and issuance of the final decision or letter
of acceptance must be completed within 60 calendar days of the date this
decision becomes final. A copy of the final decision must be submitted
to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant 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. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0610)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
March 16, 2011
__________________
Date
2
0120110324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110324