U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julieta B,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 0120171843 Agency No. DOI-NPS-16-0498 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 30, 2017, 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. BACKGROUND During the period at issue, Complainant worked as a Facilities Volunteer Group Work Leader at the Agency's Yosemite Valley Volunteer Field Office in Yosemite National Park, California. On October 15, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected activity2 when: 1. On June 8, 2016, the Volunteer Program Coordinator at Yosemite National Park accused her of stealing money from the Rangers' Club, where Complainant stayed, and subjected her to negative comments; and 2. On July 4, 20 I 6, the Maintenance Mechanic Supervisor at Yosemite National Park, relieved Complainant of her position as a volunteer and told her the staff did not like her personality. In its March 30, 2016 final decision, the Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency first applied the common-law test to argue that Complainant was not its employee as stated in Ma v. Dep't of Health and Human Serv., EEOC Appeal Nos. 01962389 and 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). Next, the Agency stated that it did not provide Complainant significant remuneration; and that Complaint's volunteer work was not a prerequisite for regular employment with the Agency. As a result, the Agency determined that Complainant was a volunteer who lacked standing to file the instant EEO complaint. On appeal, Complainant contends that, as a volunteer, she devoted her time and work. According to Complainant, she spent $1,200.00 to cover her own expenses, which included rescheduling her return flight after the Agency caused her to leave the park earlier than she had planned. Complainant also expressed an expectation that her volunteer work for the Agency would provide an experience that would further her career plans in forestry. ANALYSIS AND FINDINGS Under 29 C.F.R. §§ 1614.103 and 1614.106(a), an agency shall accept a complaint from any aggrieved employee or applicant who believes that she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. Our federal sector case precedent has long-defined an aggrieved employee or applicant 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In most cases, our regulations only protect employees or applicants for employment. See 29 C.F.R. 1614.103. However, EEOC has recognized narrow exceptions to this general rule. See Jarvis M. Complainant, v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152722 (Dec. 17, 2015). We have extended Title VII protection where a volunteer work would regularly lead to employment with an agency. We cannot do so if evidence of record does not support such a link between the volunteer work and regular employment. Id. citing Phillips v. Dep't of Veterans Affairs, EEOC Appeal No. 01893011 (Sep. 12, 1989). The Commission may also consider an individual a covered employee or applicant when an employer provides a volunteer with benefits that constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship." See EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-III(A)(1)(c) (Aug. 6, 2009) citing Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993) (reversing summary judgment where a volunteer firefighter received significant benefits that included pension, insurance, tuition reimbursement, etc.) Here, we are not persuaded that Complainant's volunteer work would have regularly led to official employment with the Agency. Complainant clearly aspired to obtain forestry-relevant experience. No evidence, however, linked volunteering to the possibility of a future Agency position. To the contrary, Complainant understood that the Agency had relied on volunteers because it lacked paid positions to offer. Complainant acknowledged that she and her fellow volunteers had expected to work without financial compensation from the Agency. Moreover, the record shows that Complainant intended to return to her undergraduate studies. We acknowledge that the Agency provided Complainant free housing for the duration of her volunteer work; Complainant completed a "Volunteer in Parks Individual Timesheet" during June of 2016 for the limited purpose of requesting Agency reimbursement for meals or mileage. Beyond housing and reimbursement, however, the record reflects that the Agency did not pay Complainant. The Volunteer Program Coordinator explained that Agency policy did not permit compensation for its volunteers such that Complainant had donated her time and efforts. Accordingly, we find that the housing and reimbursement benefits that Complainant received from the Agency were incidental to an otherwise gratuitous arrangement as opposed to significant employment remuneration. CONCLUSION The Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 August 9, 2017 __________________ 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 her formal complaint, Complainant checked "reprisal" to indicate the allegedly prohibited basis. Complainant also wrote that believed that she was subjected to discrimination on the basis of "personality and work conditions." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171843 5 0120171843