Suzanne M. McGohey v. Justice (FBI) 01A11500 March 30, 2001 . Suzanne M. McGohey, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency. Appeal No. 01A11500 Agency No. F-00-5476 DECISION Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). In a complaint dated June 5, 2000, the complainant alleged that she was discriminated against on the basis of sex (female) when during the course of her employment with Day by Day, Inc. and Tessada, Inc., she was harassed by employees at the FBI Academy at Quantico, Virginia. Complainant cites a number of episodes of harassment which the agency's final decision of December 8, 2000 recites in detail. The agency determined that complainant was not an agency employee and dismissed her complaint for failure to state a claim. The Commission agrees that complainant was not an agency employee and accordingly, her complaint will not lie under 29 C.F.R. §1614.103 et seq. Before the Commission or the agency can consider whether the agency has discriminated against complainant in violation of Title VII, it first must determine whether complainant is an agency employee or applicant for employment within the meaning of Section 717(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(a). Section 717(a) provides in relevant part that "[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." Thus, Section 717(a) expressly prohibits discrimination by federal agencies against "employees" and "applicants for employment." Section 717(a) does not expressly prohibit discrimination by federal agencies against independent contractors. Therefore, complainant is protected from discrimination by the agency by Title VII only if she may be deemed an employee of the agency or applicant for employment with the agency. The Commission has held that it will apply the common law of agency test in order to determine whether the complainants should be deemed to be “employees” under section 717 of Title VII. 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 is usually 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"; (10) whether the worker accumulates retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties. See Zheng v. Department of Health and Human Services, EEOC Appeal No. 01962389 (June 1, 1998); Ma v. Department of Health and Human Services, EEOC Appeal No. 01962390 (June 1, 1998)(citing Nationwide Mutual Insurance Co. et. al. v. Darden, 503 U.S. 318, 323-24 (1992)). The Commission finds that the complaint fails to state a claim under 29 C.F.R. Part 1614 because complainant was an employee of Day by Day, Inc., and subsequently, of Tessada Associates, Inc. and accordingly, the complainant was not an employee or applicant for employment with a covered governmental entity. See 29 C.F.R. § 1614.103(c). Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) 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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations March 30, 2001 __________________ Date