U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Delphia F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 0120181098 Agency No. DECA-00252-2017 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated December 29, 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 worked as a Bagger at the Agency's Ord Military Community Commissary in Presidio of Monterey, California. Baggers are "self-employed licensees" who are given permission, or license, to enter the facility for the specific purpose of soliciting Commissary customers to bag and carry out their groceries in the hopes of receiving a tip. A Head Bagger, elected by the baggers at large, performs the duty of scheduling. A bagger's presence on the installation can be removed by the installation or Store Director at any time if his or her presence is no longer in the best interest of the Agency. While working as a Bagger, Complainant contends she was assaulted by another Bagger (hereinafter "Person T") in late July 2016. Complainant's representative2 contacted the Store Director, who indicated that he would "take care of everything if [Complainant] dropped the [criminal] charges." So, Complainant did not pursue charges. Thereafter, in early September 2016, Complainant was suspended for seven days by the Store Director in order to "maintain safety, security, good order . . . ." Complainant believed her suspension was based upon inaccurate statements by Person T. The next month, Complainant was allegedly assaulted by the Head Bagger (hereinafter "Person R") and subsequently terminated, on October 17, 2017. Believing that she was subjected to unlawful discrimination and harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on November 20, 2017, she filed a formal complaint based on race, national origin, age, and reprisal for prior protected EEO activity. In its final decision, the Agency framed the claim as follows: On or about October 17, 2017, Ord Commissary Officer terminated Complainant from her position as a Bagger. In its December 29, 2017 decision, the Agency dismissed the formal complaint on the grounds that Complainant was not an Agency employee. The Agency reasoned that as a "self-employed licensee" Complainant "provides no work or services for the [Agency]", and noted that "there is no contract in the relationship". The Agency stated that all tips belonged entirely to the Bagger, income tax is the personal responsibility of the Bagger, and no performance evaluation was conducted by the Agency. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the instant formal complaint for failure to state a claim on the basis that Complainant was not its employee. 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. Therefore, it must be determined whether Complainant was an independent contractor or whether, for the purposes of the 29 C.F.R. Part 1614 EEO complaint process, she can be considered a de facto employee of the Agency. The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus an independent contractor. See Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016); 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 or has the right to control 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. In assessing the right to control, EEOC does not consider any one factor to be decisive. On appeal, Complainant's representative disputes the Agency's assertion that Complainant failed to respond to their Ma factor questionnaire. He argues that Complainant she required, but was denied, a Vietnamese interpreter or translation of the questions. Additionally, Complainant explains that she was awaiting investigative documents from the police and Inspector General regarding the assaults. We do not find, however, that such documents are necessary to the analysis before us. In the instant case, Complainant was granted access to the Commissary by the Agency to offer customers the option to have her bag and carry their purchases. The parties do not dispute that the Agency did not provide Complainant with payment, benefits, or leave. The record reflects that the Agency did not set Complainant's schedule, evaluate her performance, give her assignments, or supervise her. While her work was performed at an Agency facility, with Agency supplies, we do not find that the Agency exerted sufficient control over Complainant to qualify as her employer for the purposes of the EEO complaint process. Moreover, the Commission has, on three recent occasions, already considered whether or not similar commissary baggers could be considered de facto employees of the Agency, and has decided that they were not. See Jared F. v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120151418 (October 2, 2015), request for reconsideration denied, EEOC Request No. 0520160044 (February 17, 2016); Complainant v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120141786 (August 27, 2014); Chara S. v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120172859 (January 9, 2018). Based on the legal standards and criteria set forth above, 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. CONCLUSION Accordingly, the Agency's final decision to dismiss the formal complaint was proper and 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 April 6, 2018 __________________ 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 The record indicates that Complainant's representative, her son, is a paralegal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181098 5 0120181098