Kenneth L. Ryfkogel v. Department of the Navy
01A03701
August 16, 2000
.




Kenneth L. Ryfkogel,
Complainant,

v.

Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.

Appeal No. 01A03701

Agency No. DON 00-68098-001


DECISION

Complainant filed a timely appeal with this Commission from an agency's
decision dated March 14, 2000, 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.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. § 1614.405).

In his complaint, complainant alleged that he was subjected to
discrimination on the bases of sex and reprisal for reporting and opposing
workplace harassment when:

All staff continuously made inappropriate comments regarding his
education, work practices, and salary; and

The technician staff provided him with inaccurate patient data; caused
scheduling delays; and failed to perform assigned tasks, which he reported
to supervisors, who failed to respond.
The agency dismissed the complaint for failure to state a claim, finding
that complainant was not an employee of the agency, but was instead an
independent contractor employed by a staffing firm.  In reaching this
conclusion, the agency found that although complainant performed his work
on the agency's premises with agency tools and equipment, the agency had
no authority to withhold taxes; provide leave or workers' compensation;
or terminate him.  The agency also determined that complainant's work
required a high degree of expertise, and that he was engaged in the
private practice of optometry in addition to the work he performed under
contract for the staffing firm.  Furthermore, the agency found that
it was unable to assign complainant to duties outside of optometry,
and that optometry was not the “business” of the agency, but rather a
service provided to military personnel and their dependents.<2>

On appeal, complainant argues that the deliberate and detrimental
interference of the staff in his work, and the constant monitoring by
agency doctors working at the same facility, is tantamount to control
over his work, such that he maybe deemed an employee for the purpose of
pursuing an EEO complaint against the agency.  In particular, complainant
argues that one of the supervisory physicians attempted to control patient
care by ordering him to inappropriately dilate certain patients and to
illegally write prescriptions even though he had no authority to do so.
Complainant also argues that the agency and the staffing firm controlled
his schedule, the number of hours worked, and the number of patients seen.
Complainant further argues that  control was evidenced by the fact that he
performed all services on the agency's premises with its own equipment,
and argues that the agency attempted to control patient care when
staff refused to obtain necessary equipment for his use.  Complainant
further argues  that he was paid by the hour; had no role in hiring
assistants; and that although he was able to maintain his own private
practice, he was prohibited from running contact lens advertisements.
Complainant additionally argues that although the agency may not have
technical authority to terminate him, it had the right to request
his discharge through the staffing firm, which is how he was removed.
Furthermore, complainant argues that the agency required him to take
training courses, and that he felt he was developing a relationship by
virtue of an affiliate staff position he was granted at certain military
medical facilities.  Moreover, complainant argues that he is a “joint”
employee of the staffing firm and the agency because they each exercised
the requisite control over his work.
In response, the agency argues that the staffing firm controlled where
complainant worked, noting that it reassigned complainant to work at
two different facilities on different days.  The agency additionally
argues that complainant's work requires a high degree of expertise that
required him to follow accepted procedures, and that because of his
contract with the staffing firm, he was required to “follow the rules,
procedures and processes of the client.”  The agency further argues that
complainant was paid an hourly wage by the contracting firm, and that
he only worked at the agency's facilities as long as the contracting
firm assigned him to do so.  Moreover, the agency contends that it had
no authority to assign complainant outside of the practice optometry,
and that although he could direct the administrative and technical staff,
he had no role in hiring or firing them.  As noted in its final decision,
the agency indicated that it provided complainant with no benefits such
as leave, and was not responsible for any tax withholding or reporting.
The agency argues that it did not have the authority to discipline or
fire the complainant, and that in the final analysis, it did not control
the “means and manner” of his work performance sufficient to render him
its employee.

The Commission's regulations provide that an agency shall accept a
complaint from any aggrieved
employee or applicant for employment who believes that the agency
has discriminated against him because of race, color, religion, sex,
national origin, age, or disability. 29 C.F.R. §1614.103.  In order to
determine whether an individual is an employee under Title VII, "the
Commission will apply the common law of agency test, considering all
of the incidents of the relationship between the [complainant] and the
agency ..." Ma and Zheng v. Department of Health and Human Services, EEOC
Appeal Nos. 01962390 and 01962389 (June 1, 1998).  In Ma, the Commission
held that "the application of the Spirides [Spirides v.Reinhardt, 613
F.2d 826, 831-32 (D.C. Cir. 1979)] test has not differed appreciably from
an application of the common law of agency test." Id. (citation omitted).

In Ma, the Commission described the common law of agency test as follows:

In [Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, (1992)], the Court
adopted the factors listed in [Community for Creative Non - Violence
v. Reid, 490 U.S. 730, 751-752 (1989)], as part of the common-law test
for determining who qualifies as an "employee" under ERISA:  the hiring
party's right to control the manner and means by which the product is
accomplished; the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's
discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the
tax treatment of the hired party. 503 U.S. at 323-324.  The Court also
referenced the Restatement (Second) of Agency §220(2)(1958) as listing
non-exhaustive criteria for identifying a master-servant relationship,
and Rev. Rul. 87-41, 1987-1 Cum. Bull. 296-299 as setting forth 20
factors as guides in determining whether an individual qualifies as a
common-law "employee" in various tax law contexts. The Court emphasized,
however, that the common-law test contains "no shorthand formula or magic
phrase that can be applied to find the answer,...all of the incidents of
the relationship must be assessed and weighed with no one factor being
decisive."  503 U.S. at 324, quoting NLRB v. United Ins. Co. Of America,
390 U.S. 254, 258 (1968).  Ma, EEOC Appeal No. 01962390.

The Commission determines that the agency did not exercise sufficient
control of the “means and manner” of complainant's work  to support
a finding that he was an employee of the agency. We determine that
complainant performed as a highly skilled, independently licensed,
medical professional, who was expected to work autonomously in providing
patient care. We are not persuaded by complainant's arguments that
two  physicians, and certain identified staff members, exerted control
over his provision of patient care.  First, we find that the claimed
interference and failure to provide support, were not intended as a
supervisory means of controlling his work.  Second, we do not find
that the purported instructions to dilate certain patients and to
illegally write prescriptions were intended as supervisory control.
Complainant himself acknowledges that  these purported instructions
lacked legitimacy,  and that,  with one exception, he ignored them.
In further evaluating complainant's relationship with the agency, we find
that notwithstanding complainant's arguments to the contrary, the nature
and length of the relationship between complainant and the agency was
determined entirely by the contract between complainant and the staffing
firm, which had the sole authority to terminate him, and did so without
notice or any of the other rights normally afforded to federal employees
prior to termination.  Although as a party to the contract, the agency
could request reassignments, schedule changes, or even removal to better
accommodate its needs, it did not have the authority to do so directly.
We note also that the agency had no authority to prohibit complainant from
engaging in the private practice of optometry, a control it exercised
over the doctors that it did employ.  Moreover we find the fact that
complainant was not on the agency's payroll, or receiving any agency
employee benefits, to be a factor in our analysis.

Accordingly, we find that complainant was not an employee of the agency,
and that the agency's decision dismissing the present case for failure
to state a claim was proper.  We AFFIRM the agency's dismissal.






 STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. § 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036.  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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).


COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which to file a civil action.  Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden,  Director
Office of Federal Operations

August 16, 2000
__________________
Date


CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed.  I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:


__________________
Date

______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect.  These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process.  Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal.  The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.

2The agency determined that complainant filed the complaint with the
inappropriate agency because he informed the EEO Counselor that the
Department of the Army discriminated against him.  However, based on the
appeal record at the Commission, we find that complainant is claiming that
he was  employed by the Department of the Navy and the staffing firm, and
by the Department of the Army and the staffing firm, because each agency
had a contract with the staffing firm, and because  complaint provided
optometry services to both agencies under the terms of these contracts.
We note that complainant filed separate complaints against each party
and that the Department of the Army's dismissal of the complaint is
currently on appeal before the Commission as EEOC Appeal No. 01A04012.

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