0120182156
09-12-2018
Brenton W.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brenton W.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120182156
Agency No. USM-2018-00115
DECISION
On June 6, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 4, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the staffing firm Walden Security serving the Agency as Court Security Officer at the Agency's Eastern District Texas Bankruptcy Court in Texas.
On December 14, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on his race (Black) and reprisal when:
1. On August 29, 2017, he received a racist group text from his staffing firm supervisor of an elderly Asian man sitting on a display shelf with rows of magazines titled "LEVEL," with the caption "This is Wong on so many levels."2
2. On August 30, 2017, he forgot his E-Learning training password and requested his staffing firm supervisor, in the presence of staffing firm coworkers, to contact tech support for a password reset. He then received a group text from one of the coworkers with a link to a YouTube video titled "Forgot your password?" of a baboon sitting in an office chair at a desk repeatedly slamming his hands on a laptop keyboard and throwing them up to his head in frustration with the caption "When you forget your password again."
3. After being transferred on September 9, 2017, to another federal court facility while his September 5, 2017, racial intimidation complaint was being investigated, on September 18, 2017, he was returned to the court facility where he was required to continue working with the same staffing firm people who created the hostile work environment.
4. On September 29, 2017, the same day he was informed by the staffing firm Vice President that his complaint concerning the text messages was unfounded and closed, he was demoted without explanation from his position of Assistant Lead Court Security Officer by the staffing firm District Supervisor.
5. In response to his transfer request on October 3, 2017, to another federal court office, the staffing firm Regional Supervisor responded that transferring would require taking a cut in pay, going to a part-time work schedule, and losing his seniority.
6. On October 18, 2017, his staffing firm District Supervisor for Court Security for East Texas Courts sent a memo to the office stating that a complaint was made, investigated and settled, for everyone to stop acting petty and childish, that working for the staffing firm is a privilege, and if anyone is unhappy they can quit.
7. There are several other examples of examples of harassment including:
a. being assigned daily to rove the grounds for one or two hours,
b. guys whispering and laughing when he enters the room,
c. when he leaves his chair to use the restroom, the same identified staffing firm coworker is always sitting in his chair when he returns,
d. the above staffing firm coworker blocks the doorway when he tries to exit the room, and he must say, "excuse me" before he moves, and
e. the day following the October 2017 Las Vegas mass shooting, round AR-15 magazines were sitting on his desk.3
Complainant relayed to the EEO counselor that he had emailed the Agency's Senior Judicial Security Inspector for the United States Marshals Service, and the Agency did not intervene to stop the harassment. The Agency Inspector told the EEO counselor that he did not receive the email.
In its FAD, the Agency wrote that "the USMS [United States Marshal Service] does not dispute that it is considered a joint employer over CSOs [Court Security Officers] for the purpose of filing a Title VII complaint when the alleged discriminatory action(s) are based on a CSO's job performance, qualifications and/or conduct under the USMS contract." However, it found that the complaint failed to state a claim because none of the alleged discriminatory actions were taken by an Agency official, it had no reason to know about the harassing behavior of staffing firm supervisors and employees, and thus was not liable.
The instant appeal followed.
Complainant contends that after reporting the baboon video to his staffing firm, he informed a United States Marshal who oversaw the courthouse of the incident, who advised him to contact Agency's Senior Judicial Security Inspector. Complainant contends that he sent one email on September 12, 2017, and another on September 13, 2017, to the Senior Judicial Security Inspector. He submits copies of the emails - both with the subject line "Fwd: Another Example." The emails don't have any content, but Complainant included the "Wong" text and picture with the email exhibit. Complainant contends that after sending the first email, he did not receive any indication the email was not delivered.
In opposition to the appeal, Agency counsel argues that there is no evidence that the Agency perpetrated any of the alleged discriminatory actions, or that it knew or should have known of the alleged harassment. It contends that the email address Complainant purportedly used for the Agency Senior Judicial Security Inspector was off by one digit.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.103 provides that 29 C.F.R. Part 1614, the administrative process for the federal sector, applies to employees and applicants for employment of covered departments, agencies and units. Applicable to this case, in the federal administrative sector, the Commission uses the theory of joint employment for determining if an individual is a common-law applicant/employee of the defendant employer.
In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016), the Commission recently reaffirmed its long-standing position on "joint employers" and noted it is found in numerous sources. The sources include EEOC Compliance Manual Section 2, "Threshold Issues," Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual)4; EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) ("Enforcement Guidance"), "Coverage Issues," Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998).
In its dismissal FAD, the Agency conceded it jointly employed Complainant. Further, the evidence gathered by the Agency on its control or right to control Complainant's employment does not show this finding was incorrect. Given this, we accept the Agency's finding in its FAD that it jointly employs Complainant with his staffing firm.
In a joint employment situation such as this one, where it is alleged that the staffing firm engaged in discrimination and the Agency knew or should have known about the discrimination and failed to take prompt corrective action within its control, the Agency may also be liable for the discrimination. Enforcement Guidance, "Discrimination at Work Site" section. The Agency's contention that it did not know of the alleged hostile work environment, and Complainant's dispute about this, goes to the merits of the complaint, something which must be investigated.
Accordingly, the FAD is REVERSED.
ORDER (E0618)
The Agency is ordered to process the remanded claims, as redefined herein, in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
September 12, 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 staffing firm Vice-President's surname is "Wong."
3 The Agency defined the complaint in the Notice of Right to File a Complaint of Discrimination. We have reworked the definition to better capture Complainant's claims.
4 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov.
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