0120160989
04-14-2016
Eryn M.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Coast Guard (USCG)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eryn M.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Coast Guard (USCG)),
Agency.
Appeal No. 0120160989
Agency No. HS-USCG-24054-2015
DECISION
On December 4, 2015, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 28, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as an Auditor at its USCG Headquarters in Washington, DC.
On July 21, 2015, Complainant filed a formal complaint which the Agency defined as alleging it discriminated against her based on her race (African-American) and sex (female) when she was issued a memorandum on April 22, 2015, that she was not suitable for employment under contract with the USCG and was removed from USGC facilities for security reasons for failing to successfully complete her background investigation.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. Also, in reference to its determination that Complainant was not suitable for employment with USCG, it found that the EEOC was precluded from reviewing the substance of a security clearance determination or the security requirement.
On appeal, Complainant argues that she stated a claim when she said that on April 22, 2014, the USCG Deputy Office Chief traumatized her into believing she was going to be tackled, clubbed, or shot in the back. In her report, the equal employment opportunity (EEO) counselor wrote that the USGC Deputy Office Chief relayed that when Complainant was issued the April 22, 2014, memorandum two security officers were present to escort her out of the building, as well as the Project Manager employed by the staffing firm. Complainant raised the above trauma allegation in her formal complaint, writing she was traumatized and humiliated when she was surrounded by base guards armed with guns and billy clubs.2
Complainant argues that she was jointly employed by the Agency, and that the accusations against her of dishonesty and misconduct are not supported.
ANALYSIS AND FINDINGS
The initial matter before us is whether the Agency properly dismissed Complainant's 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.3
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) (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 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.
It is uncontested that Complainant was terminated by the staffing firm because following a background investigation the Agency determined she was unsuitable to serve the Agency. Complaint file, at 30, 71, 73. The staffing firm's Human Resources Director wrote that if the Agency does not wish a staffing firm employee to continue on the contract, it communicates this to the staffing firm Project Manager, who facilitates the termination. Id. at 73. Accordingly, the record shows the Agency had de facto power to terminate Complainant, a significant factor weighing in favor of a finding that the Agency jointly employed Complainant.
But we find that the record is insufficiently developed to make a determination on whether the Agency jointly employed Complainant. The Agency Contractor Office Representative (COR), in a conclusory fashion, wrote that the USCG did not have the right to control when, where, and how Complainant performed her job, and in a conclusory fashion Complainant counted the opposite. All this is abstract. Complainant subsequently writes on appeal that the staffing firm was offsite with almost no control over her day-to-day job responsibilities, and the USCG Deputy Office Chief exercised almost exclusive control over how, when and where she performed her work. What is lacking is illustrations and examples of how Complainant received her specific assignments day to day and at other intervals, who reviewed her work product and provided her feedback, how often, and what type of review and feedback. With an eye on control, other illustrations and examples when, where and how Complainant performed her job are also relevant. On remand, the Agency shall develop the record on this.
The Agency dismissed the trauma allegation by omission. Assuming without finding that the Agency jointly employs her, this matter states a claim. 29 C.F.R. � 1614.107(a)(1). Complainant plausibly contended that being escorted out by armed guards in front of her employer and co-workers was humiliating.
In the April 22, 2015, memorandum, the Agency wrote that the USCG Center is responsible for making the suitability determination for her Low Risk contract employee position with the USGC. It indicated that an investigation raised a serious question about her current suitability for employment under contract based on employment misconduct or negligence and dishonest conduct (financial). Further, in her report the EEO counselor wrote Agency management relayed that Complainant came on board in November 2014, and never received a Common Access Card (identification card) because of her unfavorable background investigation, and pursuant to HSPD-12, was not allowed unescorted access to its facility. USPD-12 refers to Homeland Security Presidential Directive (HSPD)-12 which mandates a Federal standard for secure and reliable forms of identification for Federal employees and contractor employees. Complaint File, 66.
In reference to its determination that Complainant was not suitable for employment with USCG, the Agency found that the EEOC is precluded from reviewing the substance of a security clearance determination or the security requirement.
In EEOC Policy Guidance on the Use of the National Security Exception Contained in � 703(g) of Title VII of the Civil Rights Act of 1964, as amended, N-915-041 (May 1, 1989), the Commission explained that asserting the above exception is an affirmative defense to the charge of discrimination. It elaborated that as such, agencies must raise it and prove that the challenged employment decision was made because of national security requirements imposed by statute or Executive Order. The Commission also explained therein that the legislative history of � 703(g) indicates that this provision was only intended to except from Title VII liability for situations where employers refuse to hire or discharge persons who are unable to obtain a required security clearance.
Here, there is insufficient information in the record to make a determination on whether the Commission has authority to review the Agency's unsuitability determination. First, facially, this does not involve a security clearance. Second, the Agency has not identified the Executive Order and statute upon which it relies in asserting the � 703(g) exception. On remand, the Agency shall either waive this affirmative defense, or supplement the record thereon.
The FAD is REVERSED.
ORDER
On remand, the Agency shall supplement the record, as instructed above. Thereafter, the Agency shall either dismiss the entire complaint with appeal rights to the Commission, or in writing accept part or all of the complaint, pursuant to this decision and 29 C.F.R. � 1614.107(b) for investigation.
The Agency shall complete these actions within 60 calendar days after this decision becomes final.
Proof of compliance 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 (S0610)
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 (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 14, 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 On appeal, Complainant also contends that she stated a claim when she said the USGC Deputy Office Chief and the Agency USGC Director of its Security Center interfered with her employment opportunities by publicizing to her offsite employer, prospective employers, and others that she had been dishonest. We need not address this allegation because it is not contained in Complainant's EEO complaint.
3 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
01-2016-0989
7
0120160989