Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency. Appeal No. 0120142623 Agency No. OS-14-0033 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated May 14, 2014, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant independently contracted with the Agency to work as a Translator/Caseworker at the Agency's Federal Ombudsman Office facility in Saipan, Commonwealth of the Northern Mariana Islands. As set forth in the "Statement of Work", Complainant was to provide: "Mandarin interpretation in addition to counseling, outreach education to alien workers; and assistance in applying for, and obtaining relief with appropriate Federal and CNMI agencies. Contract caseworkers play a critical role for the mission of the Ombudsman's office." Complainant was required to: be fluent in English and Mandarin; demonstrate critical thinking skills and good judgment in conducting interviews and make appropriate recommendations, referrals or interventions to the Ombudsman; determine where to refer the worker for resolution; provide assistance through the resolution process; make preliminary projections on the types of intervention and programs required to successfully address cases; prepare reports on current cases and complaints. Believing that he was subjected to unlawful discrimination, Complainant contacted an Agency EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On February 12, 2014, Complainant filed a formal EEO complaint with the Agency alleging discrimination based on race, color, national origin, and age. The Agency framed the claims as follows: (1) On March 2, 2013, the Agency terminated Complainant's contract for employment, and opted not to pursue an appeal regarding his immigration status. (2) From June 2013 to August 2013, Complainant's work was directed by the Agency contracting officer, who required him to submit documentation not required of other workers in order to receive his wages. (3) On June 24, 2013, and several other dates, Complainant received his wages in an untimely manner. (4) On September 30, 2013, the Agency closed the Federal Ombudsman Office, and terminated his employment. In its decision, the Agency dismissed the complaint for failure to state a claim. Referencing the factors set forth in Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)), the Agency concluded that Complainant was not an Agency employee and therefore lacked standing to utilize the federal EEO complaint process. Specifically, the Agency noted that while it provided the office space, supplies and equipment needed by Complainant, it did not provide him with annual leave, retirement benefits, or social security payments. Further, Complainant was paid $2,500 each month, based on a fixed-price, one-year contract. When the Agency determined that the functions performed by the Saipan office should be provided by the Department of Labor, it decided to close the office by the end of fiscal year 2013. Therefore, stated the Agency, claims (1) and (4) did not state a claim for which relief could be granted. The complaint was dismissed in its entirety. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The Commission's jurisdiction in the federal sector complaint process extends to employees and applicants for federal government employment. 29 C.F.R. Part 1614. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. A complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government. A federal agency may be deemed the de facto employer of an individual working under a contract if it has sufficient control over the worker, regardless of whether the worker is on the federal government payroll. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, a federal agency may be an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, pp. 9-10 (Dec. 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov). The Commission has applied the common law agency test to determine whether an individual is an agency employee for the purpose of utilizing the 29 C.F.R. Part 1614 complaint process. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); Ma v. Dep't of Health and Human Service, EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. 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 hour 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; (10) whether the work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. Not all or even a majority of the listed criteria (hereinafter referred to as "the Ma Factors") need be met. Rather, the determination must be based on all of the circumstances in the relationship between the panics, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. See Ma v. Dep't. of Health and Human Sevices, supra. Factors (6), (10) and (11) Indicate Complainant May Not Be an Agency Employee It appears from the contract that Complainant is paid based on a fixed-price established for one year of services, which is paid out in monthly allotments (factor (6)). Complainant does not accumulate retirement benefits (factor (10) and the Agency does not pay social security taxes (factor (11)). Factors (1), (4), (5), (8), and (9) Indicate Complainant May Be an Agency Employee The record reflects that the Agency entered into a personal service contract directly with Complainant. The Agency set the terms, including Complainant's duties and responsibilities. The Agency, via a Contracting Officer Representative (COR), monitored Complainant's performance and ensured that all interpreting specifications and technical portions of the work were met. Therefore, we find that the Agency controlled the means and manner of Complainant's performance (factor (1)). The Agency also acknowledges that it provided the office space, supplies and equipment to perform his job (factor (4)). We acknowledge that the contract provides for one year of services. However, Complainant asserts, and the Agency does not dispute, that the contract has been renewed over thirteen times. Working for the Agency for over a decade would tend to indicate an employer/employee relationship (factor (5)). In its decision, the Agency asserts that it does not provide Complainant with annual leave. Complainant contends, however, that he was permitted to take "sick leave and vacation leave" (factor 8)). Specifically, on appeal, Complainant argues that he "enjoyed eight [days] vacation leave . . . and received full payment of my wages during my sick leave from August 28, to September 12, 2012." Finally, the record reveals that Complainant's work was an integral part of the Agency's business (factor (9)). As noted above, the Agency's own "Statement of Work" indicated that Complainant's services "play a critical role for the mission of the Ombudsman's office." Therefore, we find that, for the purposes of utilizing the EEO process, the balance of the factors considered establish that Complainant is a de facto employee of the Agency. In its decision, the Agency also reasoned that claims (1) and (4) failed to state a claim due to its "unilateral decision" to close the Saipan office. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In the instant case, Complainant alleges that the Agency required him to submit additional documentation to receive his wages, paid him in an untimely manner, and terminated him due to his race, color, national origin and age. We find that these claims relate to a term, condition and/or privilege of Complainant's employment. To the extent that the Agency contends that the facility was closed due to a shift in functions, we find that it has inappropriately addressed the merits of Complainant's complaint without a proper investigation required by regulation. The Agency's articulated reasons for its actions are irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII and/or the ADEA. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. U.S. Postal Service, EEOC Request No. 05910642 (August 15, 1991). CONCLUSION The Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. The formal complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant 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 (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 civilaction 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 January 29, 2015 __________________ Date 2 0120142623 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142623