_________________, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120101877 Hearing No. 570-2010-00054X Agency No. ARWRAMC08AUG03367 DECISION On March 29, 2010, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 25, 2010, 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. In her complaint, Complainant alleged that the Agency discriminated against her on the basis of sex (female) when she was subjected to the following incidents of sexual harassment by her supervisor/mentor: 1. on or around July 15, 2008, he gave her a hug; 2. during the week of July 28, 2008, he asked her "when are we getting married," and to send him photographs of herself in a bathing suit; and 3. on August 11, 2008, he pulled her neck back and kissed her on the neck and lips. He then pulled her from her chair and placed her arms around his neck. Following an investigation, the Agency, in error, forwarded the complaint file to an EEOC hearings unit to schedule a hearing. Complainant then advised the hearings unit that she did not request a hearing and was expecting a FAD. An EEOC Administrative Judge (AJ) returned the case to the Agency to make a FAD. The FAD dismissed the complaint for failure to state a claim. It reasoned that Complainant was a student, not an Agency employee. CONTENTIONS ON APPEAL Complainant argues that under case law, she is an Agency employee. She also argues that she is a covered student volunteer. Complainant argues that the Agency delayed and otherwise improperly processed her case, and should be sanctioned for this. She argues that the Commission should issue a decision finding discrimination and awarding damages. In opposition to the appeal, the Agency argues that Complainant is a student, not an employee or covered student volunteer. It argues that its processing of the case does not warrant sanction. The Agency argues that it would be premature for the Commission to issue a decision on the merits because it has not adjudicated the discrimination claims, and it does not waive its right to address the merits of the complaint. ANALYSIS AND FINDINGS Was Complainant an Agency Employee? The Agency and George Washington University (GW) have a contract for the administration of the Science and Engineering Apprenticeship Program (SEAP). Under SEAP, high school students are placed in Army laboratories and to a lesser extent other offices as interns or apprentices. Under a sequel to SEAP (CQL), college students can also participate. CQL is a phonetic acronym for the word sequel. An objective of the program is to establish a pool of students preparing for careers in science and engineering with a view toward potential civilian or uniform federal service or employment in the private sector. Under the contract, GW provides administrative support services, such as advertising the program through public/private school systems, issuing stipend checks to participating students, and providing accident insurance. The record shows, by a preponderance of the evidence, that the Agency funds the stipends. Complainant participated in SEAP the summer following her graduation from high school before her first year in college. She applied through an Agency website. Investigative Transcript, IT, at 44. Applications were received by an Agency contractor with the Battelle Agency, apparently a private concern. The contractor forwarded Complainant's application to departments she believed would be interested. Complainant accepted a position for the eight week period of June 23, 2008, to August 15, 2008, with the Walter Reed Army Institute of Research. Investigative File (IF) at 69. A supervisor with the Department of Medical Audio/Visual Services, the alleged harasser, made the decision to hire Complainant. IT, at 83, 84. The above supervisor was Complainant's supervisor/mentor. He assigned Complainant her daily work. IT, at 118. Complainant worked closely with an intern who stated that they were not allowed to help any other employees on their free time. IT, at 226. The supervisor said that the interns did illustration, video, and still photography work. IT, at 118. Complainant also organized files. IT, 226. She was given work orders to complete, and the office was busy with customers requesting and picking up completed work. IT, at 92, 139. Her work was monitored by the supervisor and delegated Agency employees. IT, at 79, 104, 105. Her SEAP project was to write a paper about her time at Walter Reed and create a poster about her individual tasks. IT, at 25. The supervisor set Complainant's schedule, and she was required to fill out timesheets of her time for an Agency employee. IT, at 45, 121. Any request for leave would be made to the supervisor, who had authority to grant or deny it. While working at Walter Reed, Complainant did not report to anyone at GW. IT, at 46. If the supervisor did not want an intern to return for whatever reason, he would not hire the intern back to his department for another stint. IT, at 83, 97, 98. The supervisor gave another SEAP intern a letter of reprimand, which he kept in his drawer with student intern files. IT, at 218-219. The matter before us is whether the Agency properly dismissed Complainant's 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. The Commission must determine 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 versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following: • The employer has the right to control when, where, and how the worker performs the job. • The work does not require a high level of skill or expertise. • The employer furnishes the tools, materials, and equipment. • The work is performed on the employer's premises. • There is a continuing relationship between the worker and the employer. • The employer has the right to assign additional projects to the worker. • The employer sets the hours of work and the duration of the job. • The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job. • The worker does not hire and pay assistants. • The work performed by the worker is part of the regular business of the employer. • The worker is not engaged in his/her own distinct occupation or business. • The employer provides the worker with benefits such as insurance, leave, or workers' compensation. • The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes). • The employer can discharge the worker. • The worker and the employer believe that they are creating an employer-employee relationship. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee relationship. 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). The Agency selected Complainant for hire, designated her assignments, and set her arrival time. Complainant was expected to get permission from her supervisor if she wished to leave early or not work a day she was scheduled. She worked on Agency premises using Agency equipment, and was not highly skilled. The Agency funded Complainant's stipend. The Agency monitored Complainant's work, and her supervisor gave a written reprimand to a SEAP intern for performance issues. We find that the Agency exercised sufficient control over Complainant's work performance that she was, for the purposes of filing a complaint under 29 C.F.R. Part 1614, an employee of the Agency. Accordingly, the Agency's dismissal of Complainant's complaint for failure to state a claim is reversed. Concerns on the Processing of Complainant's Complaint Complainant contends that the Agency delayed processing her Complaint. One of the most significant delays was caused by the Agency, in error, forwarding the complaint file to an EEOC Hearings Unit, rather than simply issuing a FAD. While there was delay, it does not warrant action by the Commission. During the Agency's investigative hearing, both parties were given an opportunity to develop the record by questioning witnesses, and did so. Complainant's contention that the Agency representative somehow blocked development of the record is without merit. Nevertheless, after a review of the record, we find that the investigation needs to be supplemented. The record contains a copy of an internal AR 15-6 Agency investigation on Complainant's allegations of sexual harassment. Because of the quality of the copy, parts are difficult to read. The record needs to be supplemented with a full legible copy of the investigation and all exhibits thereto. Next, the record reflects that prior to the events at issue, there were previous complaints against the supervisor, and he received informal discipline on April 5, 2007; and a Counseling on Supervisory Style on February 22, 2008. He also received an Official Reprimand on December 12, 2008. IF, at 121. At some point he was reprimanded in relation to his interaction with Complainant. Information about the informal discipline and counseling, reprimand(s), and other counselings and discipline could be relevant to factoring in whether the Agency exercised reasonable care to prevent and correct promptly any harassment. This is addressed in the order below. We decline to issue a decision on the merits of this case because it is premature to do so now. 29 C.F.R. § 1614.401. The final agency decision is REVERSED. The Agency shall comply with the order below. ORDER The Agency is ordered to supplement the investigation with a legible copy of the AR 15-6 investigation on Complainant's allegations of sexual harassment against the supervisor with all exhibits thereto (it is now located in IF, Exh. F-5). The Agency shall also supplement the record with the informal discipline the supervisor received on or about April 5, 2007; the Counseling on Supervisory Style he received on or about February 22, 2008; the Official Reprimand he received on or about December 12, 2008; the reprimand he received for his conduct with Complainant; and with any other counselings or informal or formal discipline the supervisor received for conduct occurring within three years prior to August 11, 2008. The Agency shall supplement the record with information about the precise events for which the counselings and informal and formal discipline were given (for example, if a reprimand charges "discourteous conduct," as Complainant stated the one for his interactions with Complainant did, the Agency must supplement the record with information on what was the discourteous conduct, if it is not already described in the counseling or informal or formal discipline). Thereafter, the Agency shall issue a final decision within 90 calendar days after this decision becomes final. Documentation showing that the Agency completed the supplemental investigation and a copy of the final Agency decision must be sent 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 September 21, 2010 __________________ Date 2 0120101877 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 8 0120101877