01201014870120101488
07-27-2010
Fred M. & Marion Rose, Complainants, v. Ken L. Salazar, Secretary, Department of the Interior, (National Park Service), Agency.
Fred M. & Marion Rose,
Complainants,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal Nos. 0120101487 & 0120101488
Agency Nos. NPS-09-0379 & NPS-09-0443
DECISION
Complainants filed timely appeals with this Commission from the Agency's
final decision dated January 27, 2010, dismissing their complaints 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.
BACKGROUND
During the relevant period, Complainants (husband and wife) worked as
park volunteers at a national monument under the Agency. They signed up
as volunteers in February 2007. Complainants each filed a formal EEO
complaint alleging that the Agency discriminated against them based on
reprisal for prior EEO activity when management, between October 2008 and
December 2008, harassed them based on unsubstantiated allegations and,
on December 12, 2008, forced their resignation. The Agency terminated
Complainants' volunteer agreements on December 17, 2008. Pursuant to
29 C.F.R. � 1614.606, the Agency consolidated the two complaints for
processing.
Subsequently, the Agency issued a final decision dismissing the
Complainants' complaints pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. The Agency stated that Complainants were
not employees of or applicants for employment with the Agency, and they
volunteered in non-pay positions with no form of compensation. Summarily,
the Agency stated that Complainants lacked standing to proceed in the
Federal EEO process. The instant appeals from Complainants followed,
in which they stated that they were harmed and their "volunteer" status
is inconsequential.
ANALYSIS AND FINDINGS
The Commission finds that the complaints fail to state a claim under EEOC
regulations because Complainants failed to show that they suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Complainants were volunteers
and volunteers usually are not protected "employees" for the purpose
of the administrative EEO complaint process (29 C.F.R. Part 1614).
EEOC Compliance Manual, Section Two - Threshold Issues No. 915.003 at 2-28
(May 18, 2000). However, an individual may be considered an employee of
a particular entity if, as a result of volunteer service, they receive
benefits such as a pension, group life insurance, workers' compensation,
and access to professional certification, even if the benefits are
provided by a third party. The benefits constitute "significant
remuneration" rather than merely the "inconsequential incidents of
an otherwise gratuitous relationship." Id. The record in this matter
establishes that Complainants received no "significant remuneration"
and, hence, were volunteers that can not participate in the Federal
sector EEO process. Accordingly, we AFFIRM the agency's final decision
dismissing complainants' complaints.
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
July 27, 2010
__________________
Date
2
0120101487
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101487 & 0120101488