0120160511
04-05-2016
Daisy W.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Daisy W.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120160511
Agency No. HHS-NIH-NEI-019-15
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated October 27, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant was hired by Astrix Technology Services Corporation (hereinafter "Astrix") to work as a Biologist Trainee at the Department of Health and Human Services' National Eye Institute (NEI) in Bethesda, Maryland.
Believing that she was subjected to discriminatory harassment based on race, national origin, sex, age and in reprisal for prior EEO activity, Complainant filed a formal EEO complaint on February 5, 2015.
The Agency framed the claims as follows:
1. From March 2013 to October 2014, Complainant was underpaid, denied training, treated differently than other workers and was not provided a clear explanation of her work assignments.
2. From March 2013 to October 2014, Complainant alleges that her career was taken lightly and she has not been seriously considered as a scientist or as a woman.
3. In October 2014, Complainant's supervisor did not write strong recommendations to help her to transition to another lab/career.
4. On October 14, 2014, Complainant was approved by management to enroll in a university and to arrange a partnership with the university's lab. Complainant was later informed that the tuition was too costly and they would not pay for more than two years. The university withdrew from the agreement.
5. In October 2014, Complainant was informed on numerous occasions that she would not succeed in the lab and management would not engage or support her research.
6. On October 14, 2014, Complainant received a Notice of Termination.
The Agency requested clarification of the complaint. Specifically, since Complainant's pre-complaint form and the Counselor's Report indicated that she was a contractor, the Agency asked Complainant to address each of the factors set forth in Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998).
In correspondence dated April 1, 2015, the Agency notified Complainant that it "ha[d] preliminarily accepted [her] case for investigation." The assigned investigator would not only investigate accepted claims (5), (6), and (7), but "conduct a comprehensive inquiry of the employer/employee relationship." Claims (1) through (4) were dismissed for untimely counselor contact. These claims, however, were later accepted for investigation.
Following the investigation, in October 2015, the Agency issued its final decision dismissing the complaint for failure to state a claim. The Agency reasoned that Complainant was not an employee. It cited the Ma factors, but without any analysis, simply noted that the inquiry into the employer/employee relationship supported the determination that it is not Complainant's employer.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed the instant formal complaint for failure to state a claim. 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 the manner and means by which the work is accomplished.2
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in 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.
Id. 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).
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), 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 and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 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.
In the instant case, as noted above, although the Agency decision references Ma v. Department of Health and Human Services, and lists the Ma factors, it did not analyze the factors. The Agency made brief reference to an inquiry by the investigator, without providing any further details or evidentiary support. Similarly, the Agency has not submitted a brief opposing Complainant's appeal.
Contrastingly, Complainant addresses each of the Ma factors in her appeal brief. She argues that the majority of factors indicate that she should be treated as an Agency employee for the purposes of using the EEO process.
Factors (1),(3), (4), and (10) Indicate that the Agency Jointly Employs Complainant
Complainant was hired by Astrix, but both Agency and Astrix officials stated that the Chief, Ophthalmic Genetics Clinic (hereinafter "Chief") and Director of NEI (hereafter "Director"), both Agency officials, were Complainant's first-line and second-line supervisors. The Deputy Executive Officer at NEI stated that the Chief provided Complainant with instructions regarding her assignments. Similarly, the Managing Director of Astrix (hereinafter "Astrix Manager") explained that he interacted very little with Complainant regarding her assignments, that she worked at the discretion of her NIH supervisor. Complainant asserts that her NIH supervisors "had full control of my short-term and long-term research and work." In particular, she notes that with respect to a new research project she was required to report and coordinate with the Director and his staff scientist. Complainant challenges the assertion that her work description was defined by her Astrix service agreement. Instead, she argues that her responsibilities resulted from discussions with Agency officials and were reflected in an e-mail from the Chief, prior to her relocation to the United States for the position and prior to signing the Astrix service agreement. Therefore, based on the instant record, we find that the Agency controlled the means and manner (factor (1)) of Complainant's work.
The parties do not dispute that Complainant worked at the Agency's NEI facility (factor (4)), in their labs with Agency provided materials and equipment (factor (3)). The record indicates that Complainant had keys and security clearances to access Agency labs and computers.
As for the regular business of the Agency (factor (10)), Complainant states that her work was a "nanoparticles-based therapeutic project" that "was in line with the NEI vision for gene therapy and . . . [NEI Director's] vision for his lab." Further, in light of Complainant's area of research, the record indicates that the parties in fact intended for her to be an employee.
The record reflects that NEI management sought to hire Complainant, but her education level (not having a PhD, but instead two Master's Degrees) prevented her from meeting the established categories for an Intramural Research Training Awardee (IRTA). According to Complainant she was told she would have to be hired as a contractor, with the same terms and conditions as the IRTA. In support, Complainant provides an e-mail from Chief explaining that "the contractor mechanism is merely a means of getting you here sooner rather than later. To work through another mechanism, from everything we explored, would have been much more difficult." Based on the instant record, it appears that the parties intended to create an employer/employee relationship. Complainant argues that her decision to relocate her family from England was based on this shared intent.
Complainant has alleged, in claim (6), that her termination was discriminatory. Therefore, we must examine the record with respect to whether it was the Agency or Astrix that made the decision to end Complainant's employment. Complainant stated that on October 14, 2014, she received an e-mail from the Director asking to meet later that day. When they did meet, he terminated her effective immediately. According to Complainant, Astrix Manager was surprised, as they had extended her contract on a month to month basis until her expected conversion to Fellow. The Director denied issuing Complainant a Notice of Termination, and stated that Astrix would have done so. He acknowledges meeting with her on October 14, 2014, when he "informed her of the contract's expiration." Astrix Manager explained to the investigator that, on October 15, 2015, he was notified by Agency administrative offices that Complainant's services were no longer needed. Consequently, we find the Agency's ability to terminate Complainant indicates the status of an employer.
Factors (8), (12), and (13) Indicate that the Agency may not Jointly Employ Complainant
The record reflects that Complainant is paid by Astrix (factor (8)). The record contains a contract between the Agency and Astrix, for a "firm fixed price contract" for "1 Lab Technician to work with [Chief] . . . for one year." However, the Agency's Deputy Executive Officer explained that Complainant initially received less pay (than an IRTA) because the Chief may have misunderstood Astrix's pay process. Once the Agency learned that Astrix did not pay for Complainant's health insurance, as was provided for IRTAs, "Astrix increased Complainant's salary to correct the error". Moreover, when Complainant worked in the Director's lab, he also approved the increase. Therefore, while Complainant is paid pursuant to the contract between the Agency and Astrix, it appears that individual Agency officials were also able to modify that salary in an effort to match her salary to similar Agency employees (i.e. IRTAs).
As to benefits and taxes (factors (12) and (13), the record shows that Astrix provided these to Complainant. In a letter dated February 28, 2013, Astrix Manager explained to Complainant that she would accrue paid time-off, was eligible to participate in Astrix's retirement program, and could elect Astrix's sponsored health insurance.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
CONCLUSION
Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (M0815)
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 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, 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 (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
April 5, 2016
__________________
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 Another factor is whether the employer can discharge the worker. 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). This factor is especially significant in termination cases.
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0120160511