0120140999
07-15-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140999
Agency No. ARINSCOM13AUG04161
DECISION
On January 12, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 12, 2013, dismissing her 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 worked for Chimes District of Columbia, Inc. (Chimes) serving the Agency as a facility space planner and alternate on-site lead at the Agency's National Ground Intelligence Center (NGIC) located in the Rivanna Station in Charlottesville, Virginia.
As facility space planner, Complainant performed space planning and support services. The contract between the Agency and Chimes provided that this entailed advising on space management including equipment/personnel relocations, being site coordinator for room alternation projects, and serving as the space utilization specialist responsible for the coordination and implementation of short and long range work space construction and renovation projects. The Agency Contracting Officer Representative (COR) wrote this required the ability to conduct space feasibility and utilization studies. Complainant also served as the alternate on-site lead for Chimes.
According to the counselor's report, Complainant said her work and guidance came from the COR, the Agency's Chief of the Logistics Division, and a third Agency official.
According to the COR, there was a Chimes on-site lead, who would assign and schedule the work. He conceded, however, that government employees have attempted to intervene, direct or assign space planning and workstation furniture projects, and in those instances he reminded them that they could not direct contractor assignments. He wrote that instead, work to be performed by Chimes had to be requested by NGIC Logistics Division team leads or by himself, and he reminded Complainant that she was not to accept work from anyone other than the Chimes on-site lead or himself.
According to the COR, the Chimes on-site lead managed and supervised Complainant day to day, and Chimes was responsible for figuring out how and when a requirement was fulfilled. He wrote that Agency oversight consisted of final approval over the contractor-recommended space decisions (designs), before actual execution, and observance of delivery to ensure the Agency received services in a timely manner.
According to the Agency, on August 1, 2013, Complainant allegedly initiated two conversations, with and in the presence of co-workers from both Chimes and the Agency, where she was asked why it was acceptable for Blacks to use the "N" word, but not others. In these conversations Complainant allegedly gave examples and repeatedly used the unabbreviated version of the "N" word.
The incident was reported on August 1, 2013, to both the Chief Operating Officer (COO) of Chimes and Agency management. Chimes suspended Complainant the same day pending an investigation. Meanwhile, on August 1, 2013, Agency management conducted an investigation, gathering signed statements from witnesses.
On August 2, 2013, Agency management contacted the COO and informed him it did not want Complainant to return, to coordinate the retrieval of her badges, and to discuss how soon Chimes could replace Complainant. The COO responded the same day that Chimes would replace Complainant as quickly as possible.
On August 8, 2013, an Agency Contracting Officer sent an email to Chimes' COO. After writing that Complainant used a highly offensive racial epithet repeatedly in two separate cubicles located in the NGIC Logistics Division on August 1, 2013, and continued even after being asked to stop, the Agency Contracting Officer concluded that Complainant was not an acceptable employee under the Chimes contract with the Agency, and needed to be replaced.
In August 2013, Complainant filed a claim for unemployment compensation. In a decision on the claim, the Virginia Employment Commission recounted that Complainant was removed from her employment with Chimes on August 1, 2013, for an alleged violation of company policy.
Complainant filed a formal EEO complaint dated December 9, 2013, alleging that the Agency discriminated against her based on her race/color (Caucasian) when:
1. On or about August 1, 2013, the Agency Chief of the Logistics Division (Drilling Individual Mobilization Augmented), the Agency Chief of the Staff Management Directorate, and the Agency Chief, INSCOM Contracting Office, did not interview her in relation to a complaint raised by a co-worker, violating NGIC Letter #4, NGIC's Anti-Harassment Policy Statement; and
2. On or about August 1, 2013, she was removed.1
The Agency dismissed issue 1 for failure to state a claim. It reasoned that Complainant was not aggrieved by the alleged failure to interview her. It also dismissed the entire complaint for failure to state a claim on the grounds that Complainant was not an employee of the Agency.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The proper focus for dismissals of individual EEO complaints under 29 C.F.R. � 1614.107(a)(1) is on whether the complainant is allegedly aggrieved due to an unlawful employment practice. Cobb v. Dept. of Treasury, EEOC Request No. 05970077 (March 13, 1997). The question as to whether a complainant is allegedly aggrieved due to an unlawful employment practice for which there is a remedy under the Federal equal employment statutes, of necessity, requires a consideration of whether the complainant has alleged unlawful discrimination regarding hiring, termination, compensation, or other terms, conditions, or privileges of employment. Terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc. A complaint which alleges unlawful disparate treatment regarding a specific term, condition, or privilege of employment should not be dismissed for failure to state a claim. Id., see also Brown v. Department of the Treasury, EEOC Request No. 05950415 (Dec. 14, 1995) (type of assignments).
In issue 1, Complainant alleges that she was discriminated against based on her race/color when the Agency did not interview her regarding the incidents on August 1, 2013, which led to her termination. We find that the Agency's alleged failure to interview her about the incidents which occurred on August 1, 2013, did not involve a term, condition or privilege of her employment. Rather, issue 1 is an argument that the removal was ill considered. Accordingly, the Agency's decision to dismiss issue 1 is affirmed.
We now turn to issue 2. 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.
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. 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 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 skill 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 sets 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 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.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm (Chimes) and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, 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: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2. The guidance provides the following example regarding joint employment.
Example 1: A temporary employment agency hires a worker and assigns him to serve as a computer programmer for one of the agency's clients. The agency pays the worker a salary based on the number of hours worked as reported by the client. The agency also withholds social security and taxes and provides workers' compensation coverage. The client establishes the hours of work and oversees the individual's work. The individual uses the client's equipment and supplies and works on the client's premises. The agency reviews the individual's work based on reports by the client. The agency can terminate the worker if his or her services are unacceptable to the client. Moreover, the worker can terminate the relationship without incurring a penalty....
In these circumstances, the worker is an employee who is jointly employed by the client and temporary employment agency. Id. at Questions 1 and 2.
On appeal, Complainant submits documentation, but makes no argument.
In opposition to the appeal, the Agency recounts language in the contract between Chimes and the Agency that the government will not exercise any supervision or control over contract service providers performance of services. It points to this language to show that Chimes controlled when, where, and how Complainant performed her job. It argues that Chimes assigned all of Complainant's work. The Agency argues that while it informed Chimes it did not want Complainant to return to the Agency, Chimes made the decision to terminate her.
There are factors which point in the direction of the Agency being a joint employer. Examples include Complainant working on Agency premises using Agency equipment (factors 3 and 4),
and her serving the Agency since November 2012 (factor 5).
But there is insufficient information to make a determination on factor 1, an important factor in this case. While the record contains the contract between Chimes and the Agency, we do not know if it accurately reflects what occurred in practice. Complainant advised the EEO counselor that her work and guidance came from the Agency Contracting Officer Representative (COR), the Agency's Chief of the Logistics Division, and a third Agency official. The record contains statements by the COR addressing factors used to make a determination on whether it had sufficient control over Complainant's position to be considered a joint employer, but the Agency did not gather information from Complainant or others in a position to know about whether in practice it had the right to control when, where, and how Complainant performed her job.
On factor 1, examples of relevant facts include whether Agency officials directly gave Complainant assignments in her roles of facility space planner and alternate on-site lead, how often this occurred and the nature of the assignments, whether the Agency guided, supervised, or got involved in the details of Complainant's work, and if so, examples thereof, whether the Agency had input into Chimes evaluation of Complainant's performance, and facts going to whether the Agency indirectly controlled Complainant's job through the on-site coordinator.
Because this case involves Complainant's removal, a significant factor in determining whether an Agency is an employer is whether it has the power to terminate Complainant. For example, an Agency's power to terminate an individual's services is tantamount to removal power where the contractor engaged the individual solely to provide services to the Agency, and once the Agency terminated the individual's services the contractor also cut off its relationship with the individual. Pietsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009). Here, it is not clear whether Chimes would have removed Complainant regardless of the Agency's action because of her alleged misconduct, or whether the Agency's decision to cut off her services played a role in Chimes decision to terminate Complainant. On remand the Agency shall solicit information on this, including from Complainant, as well as Chimes, if it will cooperate.
Accordingly, the Agency's decision to dismiss issue 1, as redefined herein, is AFFIRMED. The Agency's decision to dismiss issue 2, as redefined herein, is REVERSED. On remand, the Agency shall process issue 2 in accordance with the order below.
ORDER
The Agency is ordered to take the following actions:
Conduct a supplemental investigation on whether it had sufficient control over Complainant's position to be a joint employer. In so doing, the Agency shall gather information on control factors 1 and 14, as numbered in this decision. On factor 1, examples of relevant facts include whether Agency officials directly gave Complainant assignments in her roles of facility space planner and alternate on-site lead, how often this occurred and the nature of the assignments, whether the Agency guided, supervised, or got involved in the details of Complainant's work, and if so, examples thereof, whether the Agency had input into Chimes evaluation of Complainant's performance, and facts going to whether the Agency indirectly controlled Complainant's job through the Chimes on-site coordinator. The Agency must solicit information from Complainant on this, as well as others in a position to know, for example, the Chimes on-site lead while she served the Agency, if available. On factor 14, the Agency shall gather facts on whether Chimes would have removed Complainant regardless of the Agency's action because of her alleged misconduct, or whether the Agency's decision to cut off her services played a role in Chimes decision to terminate Complainant. The Agency must solicit information from Complainant on this, as well as others in a position to know, including Chimes personnel, if available. After completing the supplemental investigation, the Agency shall provide a copy thereof to Complainant.
Thereafter, the Agency shall accept issue 2 for investigation, as redefined herein, or procedurally dismiss it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.2
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 documentation verifying that the corrective action has been implemented, including a copy of the acceptance letter or FAD, 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
July 15. 2014
__________________
Date
1 In its definition of the complaint, the Agency separated issue 1 into three issues. We have consolidated them for the sake of brevity. The Agency defined issue 2 as the Agency requesting Complainant be removed from the worksite. Because Complainant alleged this led to her termination, we have redefined issue 2 to more accurately capture Complainant's complaint.
2 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120140999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
10
0120140999