U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jared F.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120151418 Agency No. DeCA-00059-2015 DECISION On March 12, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 25, 2015, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was self-employed serving the Agency as a Head Bagger at its Kirkland Air Force Base Commissary in New Mexico. On February 18, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Hispanic) and age (approximately 66) when he was terminated on January 27, 2015. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. Complainant served the Agency as a bagger for 15 years. In his last three years of service he was Head Bagger, via annual elections by the baggers. Baggers serve in their positions with the permission of the installation commander to enter the installation for the purpose of soliciting commissary customers to bag and carry out their groceries in return for the expectation of a tip. The commander's role is to ensure installation security and protection. The Store Director also independently gives permission to baggers to enter the store on their personal business. Baggers provide their services at the request of each individual patron, and use commissary supplies of bags and carts to perform their function. The baggers do not perform their function under the supervision of Agency staff. Baggers coordinate their schedules through the Head Bagger. The Head Bagger is empowered to schedule baggers to work, train them, and to exercise basic control over the group to be generally responsive to store management for the operation of the bagger program with the commissary. Commissary management does not perform evaluations of baggers. On October 27, 2014, the commissary Store Director placed Complainant on a 45 day "probationary period," citing ongoing disruption to the good order, discipline and customer service of the commissary due to Complainant's conduct. She warned Complainant that any further disruption on his part within his probationary period would result in the permanent revocation of permission for him to enter the store for the purpose of bagging groceries. According to the Store Director, Complainant had an ongoing disagreement with Bagger 1 which became so raucous that the installation facilitated a dispute resolution session for both parties. Like Complainant, Bagger 1 was placed on a 45-day probationary period and remained at the commissary. Complainant also allegedly encouraged other baggers to go to the Command with their complaints and concerns, rather than commissary management as instructed, creating explicit discontent by the command with the commissary since the commissary should handle such issues. By memorandum dated January 27, 2015, the Store Director notified Complainant that effective the next day his permission to enter the Kirkland Commissary for the purpose of pursuing his personal business of bagging and carrying out customers' groceries was revoked. The Store Director notified Complainant that the reason for this was his continued disruption of the good order and discipline of the store along with his ongoing refusal to comply with acceptable management standards and practices as communicated by her and her Store Administrator. He was instructed to immediately surrender all files/paperwork on the active baggers waiting list. The Store Director wrote that she asked Complainant for the Bagger Understanding paperwork and active list of baggers for the election, and he never provided this paperwork. The Store Director stated that Complainant allegedly attempted to have a revised set of by-laws approved by the commander rather the commissary, as instructed, and it was returned by the command to the commissary on January 13, 2015. According to the Store Director, Complainant also violated rules to have the by-laws voted on by all baggers. She stated that Complainant refused to comply with the Store Administrator's instruction to return Bagger 1 to bagging groceries (rather than just taking care of carts) after Bagger 1 successfully completed his 45 day probationary period. According to the Store Director and Store Administrator, Complainant has repeatedly told store management that baggers, including himself, are not "de facto" employees of the commissary and management could not tell him what to do. On appeal, Complainant counters that when he let Bagger 1 go in October 2014, which was within his authority, and Agency management interfered. He denies that he ever told baggers to go to the base commander with their complaints. Complainant wrote below that in past years he submitted the updated by-laws to the Store Director and base Commander, but the Store Administrator told him in the most recent year that the base Commander did not need a copy. He suggests that he did not use the term "de facto" employee in the context mentioned by the Store Director and Store Administrator. He contends Bagger 1 wanted to be a cart pusher, submitting a document he signed in October 2014. The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. 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 has applied the common law of agency test to determine whether an individual is an agency employee versus an independent 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: 1. The employer has the right to control the manner and means by which the work is accomplished. 2. The skill required to perform the work (lower skill points toward an employment relationship). 3. The source of the tools, materials and equipment used to perform the job. 4. The location of the work. 5. The duration of the relationship between the parties. 6. The employer has the right to assign additional projects to the worker. 7. The extent of the worker's discretion over when and how long to work. 8. The method of payment to the worker. 9. The worker's role in hiring and paying assistants. 10. The work is part of the regular business of the employer. 11. The employer is in business. 12. The employer provides the worker with benefits such as insurance, leave or workers' compensation. 13. The worker is considered an employee of the employer for tax purposes. Id. 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 or as an independent contractor 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). In the instant case, factors 2 - 5, 10 and 11 suggest that the Agency may be a common law employer of Complainant. Leading baggers and bagging does not require high skill (factor 2). Baggers used Agency equipment and worked on Agency premises to perform their work (factors 3 and 4). Complainant served at the commissary for 15 years as a bagger (factor 5). Bagging is part of the regular business of the commissary - customer service and speeding of the checkout line, and the commissary is a business (factors 10, 11). Further, Agency management took the actions of placing Complainant on probation and revoking his permission to be on commissary premises. Factors 1, 6, 7 - 9, and 12 - 13, however, indicate that the Agency is not a common law employer of Complainant. While the Agency set out some standards for baggers -- wear a red vest, responsible for damage caused to patron groceries, no soliciting tips, and so forth, they were not supervised by Agency staff, and the Head Bagger (Complainant) created schedules and made assignments (factors 1, 6, 7). While the record does not suggest Complainant "hired" or paid the baggers, it is clear that as Head Bagger, he scheduled their work, trained them, and exercise basic control over them (factor 9). The baggers worked solely for tips, and the Agency was not involved in compensating them (factors 8, 12, 13). In Complainant v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120141786 (Aug. 27, 2014), the EEOC found that a bagger at the Agency's White Sands Missile Range Commissary in New Mexico was not a common law employee of the Agency. Among other things, the EEOC found that the Agency did not control when the bagger performed her duties and all income came from patron tips. Based on the legal standards and criteria set forth herein, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as his employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The record reflects that Complainant was self-employed and exercised a high degree of independence and control, apart from the Agency, in performing his duties and conducting himself. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton Madden's signature Carlton M. Hadden, Director Office of Federal Operations October 2, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151418 2 0120151418