U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgina K.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 0120172929 Agency No. FSA-2017-00687 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 21, 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. 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 served as the Chairperson of the Campbell/Amherst/Appomattox County (Virginia) Office Committee (COC). Farmers and ranchers are elected to serve on the Agency's COCs to "allow grassroots input and local administration of federal farm programs." Believing that the COCO District Director (hereinafter "DD") subjected her to discriminatory harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on July 14, 2017, Complainant filed a formal complaint based on age, race, religion, sex, and marital status. In its July 21, 2017 final decision, the Agency framed the claims as follows: 1. On an unspecified date, the [DD] diminished [Complainant's] duties as Chairperson of the County Committee by requiring his review of her decisions on various matters before such decisions were presented to the County Executive Director and other committee members; and, 2. Between March 2011 and March 2017, [Complainant] was subjected to harassment, when the District Director visited the county office for meetings and spoke to everyone in the office except her, acknowledging only the white committee members; shook hands with all the committee members except her; turned his back when she entered the office; and failed to respond to her when she spoke to him. In its July 21, 2017 decision, the Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that "as an elected official, she is excluded from the definition of employee." Further, citing the factors set forth in Ma v. Department of Health and Human Services, EEOC Appeal Nos 01962390, 01962389 (May 29, 1998), the Agency stated that it did not pay, supervise, provide retirement benefits, or pay taxes for COC members. Therefore, Complainant lacked the necessary stating to be considered an Agency employee for the purposes of the EEO process. Complainant filed the instant appeal. ANALYSIS AND FINDINGS 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In the instant case, as noted above, the Agency provided the legal analysis used in determining whether a contractor is considered an employee for purposes of EEO law. Such analysis, however, is inappropriate in this case as Complainant was not a contractor, but a volunteer. Generally, only individuals that are an "employee or applicant for employment" are covered by our regulations. See 29 C.F.R. § 1614.103. Here, Complainant serves on an Agency committee, in a position she was elected to for a three-year term. She does not contend that she is an Agency employee. Further, the record reflects that the "Eligibility requirements of county committee members" includes that they "not be an employee of the [Agency] during the term of office." Only in a narrow set of circumstances, usually where the volunteer is performing services for the agency as part of an education program and receives remuneration or where the volunteer service often leads to regular employment, has the Commission held that a volunteer is protected by Title VII. See Phillips v. Department of Veterans Affairs, EEOC Appeal No. 01893011 (Sept. 13, 1989) (citing Pollack v. Rice University, 28 FEP Cases 1273 (S.D. Texas 1982) (court found that because service for remuneration as incidental to scholastic program, plaintiff was a student and not an employee). There is no evidence indicating that Complainant falls under this exception. Therefore, we find the Agency's dismissal of the complaint for failure to state a claim was proper. CONCLUSION Accordingly, the Agency's final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 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 December 6, 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 0120172929 2 0120172929