U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chrystal S.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120160889 Agency No. 15-00164-02504 DECISION On December 19, 2015, Complainant, by and through her attorney, filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 17, 2015, dismissing her complaint of unlawful employment discrimination alleging violations of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant episodically served the Agency as a trainer vendor by conducting onboarding (orientation) team building sessions for new employees at the its Naval Surface Warfare Center - Crane Division in Crane, Indiana. In her formal arrangements with the Agency, Complainant used a business name - "[Complainant's name] Enterprises." On October 15, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her age (53) and disability (perceived) when: 1. On May 8, 2015, she was informed that her training services would no longer be used; and on the basis of reprisal for prior Rehabilitation Act and ADEA equal employment opportunity (EEO) activity when: 2. On May 18, 2015, the Agency Onboarding Program Manager sent her an email advising that "Hopefully there will not be bridges burnt on either side...." The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. The instant appeal followed. ANALYSIS AND FINDINGS 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.3 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). Factors 4 and 11 Indicate that Complainant May be an Employee of the Agency Complainant conducted her training sessions on Agency premises. (Factor 4). The Agency is in the business of government (Factor 11). Factors 1 - 2, 5 - 7, 8, 10, 12 - 13 Indicate that Complainant is an Independent Contractor Complainant provided her own materials for her training sessions, and the Agency was not involved in creating her presentations. The Agency did not supervise Complainant's team building sessions, and did not assign her additional work (Factors 1, 6). Complainant has advanced degrees and over 15 years of human resource and training experience - her training sessions required a high degree of skill (Factor 2). Since 2010, Complainant conducted team building sessions for the Agency as needed. This was episodic - 6 sessions in 2011, 11 in 2012, 6 in 2013, and 12 in 2014. Each session was about three to four hours. Given the very episodic nature of Complainant's service and the short duration of each session, we find the duration of the parties' relationship points away from an employment relationship (Factor 5). Complainant was paid per training session. Initially, she set a fee of $600 for each three training session, but then raised it to $750. The Agency provided payment with no withholding and no benefits (Factors 8, 12, 13). The mission of the Agency is to provide for the defense of the United States, not Human Resources related training (Factor 10). While the Agency ceased using Complainant's services, in this case we do not view this as a discharge. The Agency provided pages from private websites which marketed Complainant's services that indicate she is the president of her own human resources consulting firm and has consulted with employers on their problems and trained managers and employees for over 10 years, traveling the country extensively, and meeting and working with employees from all types of businesses. We find that the preponderance of the evidence indicates that the Agency was one of a number of Complainant's clients. Factors 3, 7, and 9 do not Point in Any Direction While the Agency provided a computer and projector in the training room, the record does not indicate what equipment Complainant used to create her presentations and training materials (Factor 3). While each training session was set for three to four hours, it is unclear whether Complainant had input on the precise scheduling of the presentations (Factor 7). The record does not reflect if Complainant used assistants in helping to put together her training materials and create her presentations, and in obtaining and invoicing her training sessions (Factor 9). 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 her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. This would be true even if Factors 3, 7, and 9 pointed in the direction of the Agency being Complainant's employer. Accordingly, the FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations May 11, 2016 __________________ 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 In its FAD, the Agency gave two long outdated addresses for filing an appeal with the Commission's Office of Federal Operation - a post office box and a physical location. On December 19, 2015, Complainant's attorney mailed the appeal to the outdated post office box address, and it was returned to him by the Postal Service. We advise the Agency component that issued the FAD to update its appeal rights with the Commission's current addresses. 3 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000). This factor is especially significant in termination cases. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160889 6 0120160889