closed0120142001
10-21-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120142001
Agency No. DOS-0107-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 14, 2014, 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.
BACKGROUND
During the period at issue, Complainant was as an applicant for an Agency position. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, and in reprisal for prior protected EEO activity.
The Agency determined that the formal complaint was comprised of the following claim:
[Complainant was] discriminated against when on October 4, 2013, [he] became aware [he was] not selected for the Field Equipment Engineer position offered by EMCOR.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency found that Complainant did not initiate EEO contact until January 31, 2014, outside of the applicable time period.1 The Agency noted that Complainant had previously filed an EEO complaint. Specifically, the Agency stated "on December 12, 2012, [Complainant] filed a [prior] formal EEO complaint. As part of the EEO Counseling process, for the previous complaint, [Complainant] met with an EEO Counselor on November 28, 2012, where your rights in the EEO process, including the 45-day time limit were explained." The Agency also reasoned that it has notices of the 45-day time limit on its external website posted by the Office of Civil Rights.
The Agency also dismissed the formal complaint for failure to state a claim reasoning that Complainant was attempting to enter into an independent contractor relationship with EMCOR, a subcontract of the Agency.2
The instant appeal followed.
ANALYSIS AND FINDINGS
Dismissal: Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The Agency asserts that Complainant was aware of the 45-day time limit because he had a filed a prior EEO complaint and submits a copy of a Notice of Rights and Responsibilities form from 2012, relating to Complainant's prior complaint. However, the Notice of Rights form does not contain the 45-day time limit to initiate EEO contact. Rather, the Notice of Rights contains other time limits once EEO contact has already been initiated, such as the time limit for filing a formal complaint or requesting a hearing before an EEOC Administrative Judge. In addition, while the Agency asserts that it has a posting with the time limit on its external website under the Office of Civil Rights link, this posting alone is insufficient to constitute constructive notice. We note that the Agency does not provide any information regarding EEO postings with the applicable time limit at Complainant's facility, where he worked in another contract position for the Agency. Based on the foregoing, we find that the Agency failed to establish that Complainant had notice of the applicable time limit and improperly dismissed his complaint for untimely EEO Counselor contact.
Dismissal: Failure to State a Claim
The Agency improperly dismissed the formal complaint for failure to state a claim reasoning that Complainant was applying for a position as a contract employee. We note that according to the EEO Counselor's Report, Complainant alleges that two Agency employees had influence over the contracting firm not to hire him.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insur. 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 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. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skills or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer set the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes (i.e. the employer withholds federal, state, and social security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need to be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (available at www.eeoc.gov) (Enforcement Guidance), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. A federal agency, as a client of a staffing firm, may qualify as an employer of a worker assigned to it if it has sufficient control over the worker, regardless of whether the worker is on the federal payroll. Id.; see also, Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, an agency may be considered an employer of the worker if it supplies the workspace, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance after Example 3.
The Agency in its final decision provided no analysis whatsoever in finding that Complainant was a contractor. In addition, the record contains no documentation (such as a copy of the contract between the Agency and the contracting firm) with respect to the factors set forth above. Based on the foregoing, we REVERSE the Agency's dismissal on the grounds of untimely EEO Counselor contact, and for failure to state a claim. We REMAND this matter to the Agency for a supplemental investigation in order to determine whether the Agency was a joint employer for EEO purposes, in accordance with the ORDER below.
ORDER
The Agency is ORDERED to conduct a supplemental investigation on whether it has sufficient control over the position at issue to be a joint employer. In so doing, the Agency shall supplement the record with documentation, including the contract between the Agency and the contracting firm, pertaining to the 15 listed factors set forth above. The Agency shall also include documentation, such as affidavits, from the Agency employees who Complainant alleges influenced the contracting firm not to hire him and the contracting firm officials involved in the hiring of the position at issue. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide him an opportunity to respond, and include his response in the supplemental investigation.
Based on the results of the supplemental investigation, the Agency shall issue a new decision accepting the complaint for further processing or procedurally dismissing it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting verifying the corrective action has been implemented, including a copy of the acceptance letter or final decision, as applicable.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 21, 2014
Date
1 According to the EEO Counselors Report, Complainant claimed he was not aware of the ability to file a complaint until sometime in January 2014.
2 We note that in a prior case, Complainant v. Dep't of State, EEOC Appeal No. 0120132131 (May 20, 2014) the Commission's Office of Federal Operations found that the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer. However, EEOC Appeal No. 0120132131 involved a different position than the one at issue in the instant complaint.
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012014-2001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120142001