Footnote – Volunteer v. Employee

The record reflects that the Complainant served as both an employee and a volunteer for FS. The record does not show, however, when each type of service occurred. For example, his supervisor told the EEO Counselor that, as of September 12, 2014, the Complainant had not been a paid employee for two years. In contrast, the Complainant stated, in his Complainant Statement, that he is “a long term seasonal [employee] with [FS] and in 2014 [he] was not offered a seasonal job after 30 plus years.” Viewing the facts in the light most favorable to the Complainant, we have accepted the claims herein for investigation. Nevertheless, unless he was a de facto employee, the Complainant’s claims regarding any period in which he was a volunteer, as opposed to an employee or an applicant for employment, will fail to state a claim. See Garcia v. Department of Veterans Affairs, EEOC Appeal No. 0120070040 (April 5, 2007) (volunteers not usually protected by EEO statutes, however, “individual may be considered an employee … if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers’ compensation, and access to professional certification … [that] constitute ‘significant remuneration’ rather than merely the ‘inconsequential incidents of an otherwise gratuitous relationship’”); Cerqua v. Department of Veterans Affairs, EEOC Appeal No. 01990447 (March 14, 2001) (“volunteer work is within the scope of Title VII where it is a prerequisite to regular employment or when former volunteers receive preferential treatment when applying for regular employment, and where a significant number of the agency’s regular employees performed volunteer work for the agency”). If the investigation reveals that any claim accrued while the Complainant was not an employee, a de facto employee, or an applicant for employment, such claim may be dismissed for failure to state a claim. See 1614.107(a)(1).