Cory A. Feeley, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionAug 7, 2009
0120091624 (E.E.O.C. Aug. 7, 2009)

0120091624

08-07-2009

Cory A. Feeley, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Cory A. Feeley,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120091624

Agency No. HS08ICE007003

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 30, 2009, 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.

At the time of the events at issue, complainant was working for a

contractor (STG International Inc.) at the agency's Immigration and

Customs Enforcement (ICE) Academy as a Training Technician. In an EEO

complaint, complainant alleged that she was subjected to discrimination

on the bases of race (Caucasian), sex (female), and reprisal for prior

protected EEO activity in the record when:

1. In May 2008, complainant was directed to leave work, return home,

and change her attire after being reported by a contract employee that

she was inappropriately dressed.

2. In May 2008, an agency management official repeatedly commented that

complainant's husband, an agency employee, should not be on the same

floor where she worked, and that she should limit the number of phone

conversations she had with him.

3. In May 2008, an agency management official failed to support

complainant with respect to work-related issues raised by complainant.

4. Between May and July 8, 2008, a federal employee leered at

complainant.

5. Between May 12 and July 8, 2008, a contract employee inappropriately

stared at complainant.

6. On June 27, 2008, a federal employee kissed and hugged complainant.

7. On July 1, 2008, the Office of Training and Development Director

hugged and kissed Complainant's coworker and commented that he "hugged

and kissed all female employees, and that he would hug and kiss her too".

8. On July 8, 2008, Complainant was directed not to return to work while

the agency conducted an inquiry into a photograph that was pinned to

her office door.

The agency dismissed the claims for failure to state a claim, on

the grounds that complainant was not a federal employee but instead

was a contract employee of STG International, Inc. (STG). On appeal,

complainant argues that, for purposes of her claim, she should be viewed

as a joint employee of the agency and STG and that she therefore states

a claim.

In determining whether the complainant was an agency employee or applicant

for employment within the meaning of Section 717(a) of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16(a) et. seq.,

the Commission has applied the common law of agency test. 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). Specifically, the Commission looks at the

following non-exhaustive list of factors: (1) the extent of the employer's

right to control the means and manner of the worker's performance;

(2) the kind of occupation, with reference to whether the work usually

is done under the direction of a supervisor or is done by a specialist

without supervision; (3) the skill required in the particular occupation;

(4) whether the "employer" or the individual furnishes the equipment

used and the place of work; (5) the length of time the individual has

worked; (6) the method of payment, whether by time or by the job; (7)

the manner in which the work relationship is terminated, i.e., by one

or both parties, with or without notice and explanation; (8) whether

annual leave is afforded; (9) whether the work is an integral part of

the business of the "employer"; (10) whether the worker accumulates

retirement benefits; (11) whether the "employer" pays social security

taxes; and (12) the intention of the parties. See Ma, supra. In Ma,

the Commission noted that the common-law test contains, "no shorthand

formula or magic phrase that can be applied to find the answer...[A]ll

of the incidents of the relationship must be assessed and weighed with

no one factor being decisive." Id.

Furthermore, under the Commission's Enforcement Guidance: Application of

EEO Laws to Contingent Workers Placed by Temporary Employment Agencies

and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)

(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),

we have also recognized that a "joint employment" relationship may exist

where both the agency and the "staffing firm" may be deemed 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, and the agency each maintain over

complainant's work. 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 Ma criteria, whether or

not the individual is on the federal payroll. See Guidance, supra at 11.

Complainant argues that she was selected for her position by a high level

agency official (RMO, male, race unknown) and that STG did not offer her

employment until RMO selected her. She further argues that while STG

provided complainant with "a brief orientation concerning its policy,

the agency provided [complainant] with substantive 'on the job' training"

Complainant's Appeal Brief, p. 8, on the agency's Academy Class Management

System "which is exclusive to the agency and essential to the duties

[complainant] performed at [the agency] and training at the [agency's]

Virtual University." Id. In addition, complainant contends, she was

supervised by agency management, and agency personnel controlled her use

of leave, provided her with her assignments, evaluated her performance,

and monitored her conduct. See id. Complainant further contends that

the only time she worked for STG was when working at the agency.

The agency contends that complainant is an employee of STG and should

not be considered either an employee or joint employee of the agency.

The agency argues that pursuant to the Blank Purchase Agreement

between STG and the agency, STG hired complainant to work at the agency

facility and she was managed and monitored by STG personnel, not agency

personnel. See Agency's Appeal Brief, p. 7. In addition, the agency

contends, complainant was trained by STG personnel, STG paid her salary

and benefits, and approved her leave requests. See id.

Following a review of the record, the Commission finds that complainant

has not met her burden of establishing that the agency was a joint

employer of complainant. Complainant cites Baker v Department of the

Army, EEOC Appeal No. 0120045313 (March 16, 2006) to support her argument

that she should be viewed as a joint employee, although complainant

does not specify in what ways her situation is similar to that of the

complainant in Baker. In Baker, the Commission found that the agency

exercised sufficient control over the complainant to be deemed as a

joint employer along with the contracting firm. One of the reasons

provided was that the agency "controlled the selection process." Id.

In that decision we noted that the contracting firm:

forwarded the resumes or applications of prospective candidates to the

agency and the agency approved or disapproved the candidates identified by

[the contracting firm]. The record contains e-mail correspondence from

a [contracting firm] representative to an agency representative whereby

the [contracting firm] representative identified complainant as a viable

candidate for the . . . position and forwarded a copy of complainant's

resume. In response, the agency representative expressed the agency's

disapproval stating that complainant's resume 'shows clearly that she is

NOT someone we want and that [the Regimental Surgeon] does not believe

a woman should fill the position over a male.' This correspondence

corroborates [the contracting firm's] contention that its role in the

selection process is limited to 'identifying potential candidates only'

and that it does not 'have the authority to unilaterally employ any human

resources [personnel] without specific instruction and/or approval from

the customer [the agency].'

While complainant maintains that RMO selected complainant for the position

and that "STG did not offer employment to [complainant] until after

[RMO] had selected her," Complainant's Appeal Brief, p. 8, she has not

offered any evidence supporting her contention, such as the emails between

agency and contracting firm personnel that we found probative in Baker,

or other evidence, such as affidavits from agency or STG personnel

supporting her claim. Furthermore her contention is contradicted

by an email from the agency's Unit Chief, Human Capital Services,

see Agency's Appeal Brief, Exhibit 3, who states that complainant was

selected pursuant to the contractual agreement between the agency and

STG for a Training/Technician position.

Furthermore, we note that since Baker was a case involving nonselection,

the agency's involvement in the selection process took on more weight in

determining whether or not the agency or the contracting firm should be

viewed as the employer. As noted in Ma, there are at least twelve factors

and possibly more that can be considered, and "all of the incidents

of the relationship must be assessed and weighed with no one factor

being decisive." Id. However, because the complainant in Baker was

never offered the position, those Ma factors that involved the precise

nature of the working relationship and which party exercised control,

such as who determined the employee's leave, or how long the employee

worked in the position, etc., did not come into play. In the present

case, however, complainant was offered the position, and hence the role

of agency officials in complainant's selection takes on less weight,

relatively speaking, when considered alongside all the other Ma factors.

In the instant case, we note that while complainant contends that she

was supervised by agency management, and agency personnel controlled

her use of leave, evaluated her performance, and monitored her conduct,

such claims are contradicted by agency officials who maintain that it was

onsite STG personnel and not agency personnel that supervised complainant,

monitored her performance, and approved her leave requests. As noted

above, complainant has not provided affidavits from other STG employees

or from agency employees who worked at the facility, to corroborate her

contention that the agency exercised control over her actions.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we find that

complainant has not met her burden of establishing that the agency

exercised sufficient control over complainant to qualify as a joint

employer. Accordingly, we affirm the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

August 7, 2009

__________________

Date

2

0120091624

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120091624