01964038
03-02-1999
Julia Pettis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Julia Pettis v. Department of the Navy
01964038
March 2, 1999
Julia Pettis, )
Appellant, )
)
v. ) Appeal No. 01964038
) Agency No. DON9600246001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
________________________________)
DECISION
INTRODUCTION
On April 26, 1996, Julia Pettis (hereinafter referred to as appellant)
timely filed an appeal with the Equal Employment Opportunity Commission
(Commission) from the final decision of the Department of the Navy
(hereinafter referred to as the agency) on her equal employment
opportunity (EEO) complaint in which she alleged 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 appeal is accepted in accordance
with EEOC Regulation 29 C.F.R. �1614.401 et seq.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim because appellant was not a
federal employee for the purposes of Title VII.
BACKGROUND
During the time period at issue in this case, appellant was a federal
prisoner serving her sentence in the Pacific Furlough Halfway House in
San Diego, California. From September 2, 1994, through June 14, 1995,
appellant participated in a prison Work Cadre Program (Program) and was
assigned to work at the Naval Air Station, North Island Recycling Center
(Center). In July 1995, appellant contacted an EEO Counselor alleging
that she was sexually harassed by her assigned agency supervisor at the
Center from October 1994 through June 1995. Appellant alleged that
shortly after she began working, the supervisor transferred her out
of her position in the outside area to make her his personal secretary
and began making sexual advances toward her. She alleged that during
the following months, the supervisor regularly grabbed her breasts
and demanded that she join him in car rides and meet him in hotel
rooms where he molested her and demanded that she perform sexual acts.
Appellant alleged that the supervisor ordered her to falsify itineraries
she provided to prison officials in order to cover up these meetings.
Appellant alleged that the supervisor's actions were unwelcome but that
she was afraid to refuse his advances because of his position and his
connections with prison officials until she learned in June 1995 that
she was being transferred to another prison facility.
The record includes a copy of the Memorandum of Understanding (Memorandum)
between the agency and the Federal Bureau of Prisons (BOP) for the
use of federal prison labor. Pursuant to the Memorandum, the BOP was
"responsible for control and custody of the Federal Offenders at all
times." The BOP selected the prisoners to participate in the program
and provided all pay and "job performance incentives" for inmates
participating in the program. The Memorandum specifically provided
that prisoners were not to be paid from agency funds. The Memorandum
further provided that the inmates were covered for any injury under the
Inmate Accident Compensation System. The BOP was also responsible for
the transportation of the prisoners to the Center and provided training
for the agency supervisors working with the offenders. The agency was
primarily responsible for the provision of necessary equipment and the
day-to-day technical supervision of the prisoners. The agency supervisors
were also responsible for reporting any dissatisfaction with a prisoner's
performance or other misconduct to the BOP for possible removal from
the Program.
In a formal complaint dated October 30, 1995, appellant set forth the
allegations outlined above. By letter dated March 27, 1996, the agency
notified appellant that her complaint was being dismissed. The agency's
decision was based on its determination that appellant's complaint failed
to state a claim because, during the relevant time period, appellant
was a federal prisoner serving a sentence and was not an employee of
the agency or any other federal agency for the purposes of Title VII
or the applicable EEO regulations. Accordingly, the agency dismissed
appellant's complaint pursuant to 29 C.F.R. �1614.107(a).
Appellant's attorney submitted a brief in support of appellant's appeal
arguing that the agency is attempting to avoid liability by claiming
that appellant is an independent contractor rather than an employee of
the agency. Appellant asserts that, to the contrary, an application of
each of the 12 factors used to determine whether an individual performing
services for another is an independent contractor or an employee confirms
that appellant is an employee of the agency. Appellant argues that the
"main and even dispositive factor" is the amount of control the agency
had over her performance of her job.
In its response to appellant's appeal, the agency argues that Title VII is
a limited waiver of the United States' sovereign immunity which extends
only to employees or applicants for employment, and that appellant has
failed to adequately allege the existence of an employment relationship
between herself and the agency. The agency proceeds to discuss several
court cases addressing the issue of whether a prison inmate is an employee
under Title VII. The agency also challenges appellant's reliance on the
factors cited in her brief to support a finding that she is an employee.
The agency argues that the factors cited by appellant were set forth
in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), as a test to
determine whether a claimant is an employee or an independent contractor,
and are, therefore, inapplicable in a case involving a federal prisoner.
In support of its position, the agency notes that the Commission did not
apply the Spirides factors in a previous decision involving similar facts.
See EEOC Decision No. 86-7, 2 EPG (CCH) �6865 at 7097 (April 17, 1986).
The agency also points to the exclusion of "uniformed members of military
departments" from Title VII coverage to support its contention that the
Spirides factors are inapplicable. See Gonzalez v. Department of the
Army, 718 F.2d 926 (9th Cir. 1983), Johnson v. Hoffman, 424 F.Supp. 490
(E.D. Mo. 1977), aff'd sub nom., Johnson v. Secretary of the Army,
572 F.2d 1219, 1224 (8th Cir. 1978) cert. denied, 439 U.S. 986 (1978).
Further, the agency contends that even if the Spirides analysis was
appropriate, an application of the factors would not establish that
appellant was an employee of the agency. Finally, the agency argues that
appellant has other remedies available to her pursuant to 18 U.S.C. �4126,
a workers' compensation program for federal prisoners, and the Federal
Tort Claims Act (FTCA), 28 U.S.C. �1346.
In her response to the agency's brief, appellant initially argues that
the fact that she is entitled to workers' compensation requires a finding
that she is an employee of the agency. She further argues that the cases
cited to by the agency in support of its argument that she is not an
employee because of her status as a federal inmate are distinguishable
from the instant case because they involved inmates working within the
confines of the prison in which they were incarcerated rather than in a
separate federal agency as alleged by appellant. Appellant asserts that
there is ample authority to support a finding that she is an employee
of the agency for the purposes of Title VII. Appellant further argues
that the agency has admitted sufficient facts to necessitate a finding
that she is an employee of the agency.
In its reply to appellant's response, the agency argues that the existence
of a separate worker's compensation scheme for federal prisoners bolsters
its contention that appellant is not a federal employee. The agency
also takes issue with appellant's attempt to distinguish between inmates
working within the prison and inmates working for another agency pursuant
to a federal prison labor program, arguing that the true test is whether
appellant's working relationship with the agency arose out of her status
as an inmate or an employee. The agency argues that the facts in the
instant case clearly show that but for appellant's incarceration, she
would not have been a participant in the Program operating at the Center
and that her relationship with the agency was, therefore, a function
of her incarceration. Finally, the agency contends that the new legal
authority relied upon by appellant in her response are not controlling
and are, regardless, not on point.
The agency also submitted a "Citation of Supplemental Authority"
citing Coupar v. United States Department of Labor, 105 F.3d 1263
(9th Cir. 1997). In Coupar, the court concluded that the complainant,
a federal prisoner working for Federal Prisons Industries, Inc. (FPI), was
not an employee of FPI within the meaning of the whistle blower provisions
of the Clean Air Act and the Toxic Substances Control Act. The agency
argues that the rationale for excluding an inmate from the definition
of employee for the purposes of the whistle blower provisions should
"provide pertinent guidance" to the Commission.
ANALYSIS AND FINDINGS
The issue herein is whether appellant is an employee of the agency for
purposes of Title VII.
EEOC Regulation 29 C.F.R. �1614.103 provides for the acceptance of
complaints from aggrieved employees or applicants for employment who
believe that they have been discriminated against because of race,
color, sex, religion, national origin, age or disabling condition.
Thus, a complaint filed by someone other than an employee or applicant
for employment does not state a claim under the regulations.
Section 701(f) of Title VII provides, in pertinent part, that the term
employee means an individual employed by the employer. The issue of
whether an individual is an employee for the purposes of Title VII has
most frequently arisen in analyzing whether an individual performing
particular services for an agency is an employee or an independent
contractor. Appellant relies on the test set forth in Spirides and
argues that an application of the test to her work situation requires a
finding that she is an employee of the agency. The agency, on the other
hand, argues that the Spirides test is inapplicable in this case due to
appellant's status as a federal prisoner.
The Commission previously has addressed the issue of whether an inmate
is an employee for purposes of Title VII. In EEOC Decision No. 86-7,
supra, the Commission considered whether a federal inmate performing
maintenance work for the institution in which he was incarcerated was
an employee for purposes of Title VII and determined that he was not.
Although the Commission found that the work relationship between the
inmate and the correctional facility contained various elements commonly
present in an employment context, it explained that "[t]hese individual
factors must be considered in light of the total circumstances of the
relationship between [the parties]." Id. The Commission found that the
parties' relationship arose from the inmate's having been convicted and
sentenced to imprisonment in the correctional facility:
The primary purpose of their association was incarceration, not
employment. Consequently, the [correctional facility] exercised control
and direction not only over the [inmate's] work performance but over
the [inmate] himself. The conditions under which he performed his job
were, thus, functions of his confinement to the [State's correctional
facility]....While the [inmate] received monetary compensation for
his work that compensation was minimal and, arguably, the greater
consideration was the opportunity to earn "good time" credits toward
reducing his sentence. Finally, although the inmate was not required
to work for the [correctional facility], his very job flowed from his
incarceration and was dependent on his status as a prison inmate.
Id. The Commission concluded that "[c]onsidering these circumstances
as a whole, we are persuaded that the reality of the work relationship
between [the correctional institution and the inmate] was not one
of employment...and that [the inmate] was not an employee of the
[correctional facility]."<1> Id.; see also Williams v. Meese, 926 F.2d
994 (10th Cir. 1991).
Courts have noted that cases construing the definitional provisions
of the FLSA can be helpful and persuasive in interpreting Title VII,
and vice versa. See, e.g., Hyland v. New Haven Radiology Assoc., 794
F.2d 793, 796 (2d Cir. 1986). Recently, the Ninth Circuit has applied
an "economic reality" test in determining whether inmates are employees
for purposes of the Fair Labor Standards Act (FLSA), see Hale v. State
of Arizona, 993 F.2d 1387 (9th Cir. 1993)(inmates are not "employees" for
the purpose of the FLSA minimum wage provisions), and also the Clean Air
Act and the Toxic Substances Control Act, see Coupar v. United States
Dep't of Labor, 105 F.3d 1263 (5th Cir. 1997)(inmate not an "employee"
within the whistleblower provisions of the Clean Air Act and the Toxic
Substances Control Act).
In Coupar, a federal inmate who previously worked for FPI filed
whistleblowing complaints against FPI under the Clean Air Act and the
Toxic Substances Control Act. The inmate alleged that he was transferred
to another facility in retaliation for his environmental complaints and
that after his transfer, FPI refused to place him on a waiting list for
jobs because of the complaints. Id. at 1264. The Ninth Circuit found
"the analogy between Coupar's case and Hale [supra]...to be so close
that Hale must control."
In deciding Coupar, the Ninth Circuit referred to its application of
the economic reality test to reach its conclusion in Hale:<2>
The economic reality of the relationship between the worker and the
entity for which work was performed lies in the relationship between
prison and prisoner. It is penological, not pecuniary (citation
omitted).
Coupar, 105 F.3d at 1265. The Ninth Circuit concluded that Coupar's
relationship to FPI similarly was "penological, not pecuniary." The
Ninth Circuit found that although Coupar did not have to work for FPI in
particular, as an inmate he was obligated to work at some job pursuant
to a prison work program, and "[t]hat fact brings him within the rule
of Hale."<3> Id. In effect, the Ninth Circuit--like the Commission
in EEOC Decision No. 86-7--looked to the totality of the circumstances
in determining the relationship between the parties both in Coupar
and in Hale. See Hale, 993 F.2d at 1395 ("Thus, the totality of the
circumstances does not bespeak an employer-employee relationship as
contemplated by the FLSA.").
The Commission finds that the above analysis is appropriately applied
to the instant case. Title 18 U.S.C. �4125(a) authorizes the Attorney
General to make the services of prisoners available to "the heads of the
several departments" for certain work projects. Appellant's services
were made available to the agency pursuant to the above statute and the
Memorandum between the BOP and the agency. Under the Memorandum, the BOP
was responsible at all times for the custody and control of the inmates,
selected the inmates to participate in the program, and provided all
inmate pay and job incentives. In fact, the Memorandum specifically stated
that inmates would not be paid from agency funds for their services.
Record evidence showed that appellant's compensation was minimal, i.e.,
she received $.50/hour for her labor. Although appellant performed work
for the agency on agency premises, the Commission finds that under the
facts of this case, her relationship with the agency was the result of
her status an inmate, i.e., her having been convicted and sentenced to
imprisonment in a correctional facility.<4>
Based on the foregoing, the Commission finds that appellant is not an
employee for purposes of Title VII and that her complaint therefore fails
to state a claim under the regulations. In reaching this conclusion,
the Commission notes that it considered all of the parties' arguments
and evidence including that not addressed directly herein.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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 2, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
1A prisoner may be considered an employee under Title VII when the
prisoner independently seeks work outside of the prison setting and comes
under the control of an independent employer, thus effectively shedding
the attributes of incarceration while working. See EEOC Compliance Manual
Vol II. �605.12, Appendix D; Walker v. City of Elba, 67 FEP 212 (November
30, 1995); see also 18 U.S.C. �3662 ("Temporary release of a prisoner").
The appellant in this case was not in a work-release program.
2The Ninth Circuit noted that although it had used the economic reality
test in Hale, it had determined therein that the specific factors set
forth in Bonnette v. California Health and Welfare Agency, 740 F.2d
1465, 1470 (9th Cir. 1983), were "'not a useful framework in the case
of prisoners who work for a prison-structured program because they have
to.'" Coupar, 105 F.3d at 1265, n.1.
3In Baker v. McNeil Island Corrections Center, 859 F.2d 124, 126
(9th Cir. 1988), the Ninth Circuit held that an inmate had stated a
claim for race discrimination under Title VII when he alleged that he
had been denied a position in the prison library because of his race.
Baker's complaint alleged that the position "would have given him an
opportunity to become an employee of the Washington State Library" and
that such employment "was out of the prison setting and context...."
Id. at. 126. The Baker court stated that "[w]hile the library aide
position is not work release, it is not beyond doubt that a claim could
not be proved under Title VII. We simply do not know enough about the
position." Id. at 128. The Coupar court distinguished Baker, finding that
Coupar's work was in the prison setting and context, and that his work
fulfilled a requirement of his imprisonment. Coupar, F.3d at 1266. We
find that the instant case also is distinguishable for similar reasons.
4On similar facts involving a claim under the FLSA, the United States
Court of Appeals for the District of Columbia found that when an inmate's
labor is compelled and/or when his compensation is set and paid by the
BOP, the inmate is barred from asserting a FLSA claim because he is
"definitively not an 'employee.'" Henthorn v. Dep't of the Navy, 29 F.3d
682, 686-87 (D.C.Cir. 1994).