Helen G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 23, 2019

2019002503 (E.E.O.C. Aug. 23, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Helen G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 2019002503

Agency No. 4B-040-0001-19

DECISION

On March 13, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 19,
2019, dismissing her complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for Allied National
Services (Staffing Firm 1) serving the Agency as a post office Cleaner and was a subcontractor for
Staffing Firm 2 serving the Agency as a carrier. She served the Agency’s Woodstock Vermont
Post Office.

Complainant wrote that she served as a Cleaner for five years. She served as a carrier sorting and
delivering mail via a Highway Contract Route (HCR) contract, and represents that since November
1999, she had a direct contract with the Agency to do so until 2015, when, because of a severe
illness resulting in the amputation of her left leg, she novated her contract to her daughter.
Nevertheless, Complainant continued to work on the contract. Complainant represents that soon
before her cleaning contract was terminated in February 2018, her right leg was also amputated.

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.
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On January 16, 2019, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency subjected her to discrimination on the bases of disability (amputee) and
reprisal2 for prior protected opposition EEO activity when:

1. on February 7, 2018, her cleaning contract was terminated;

2. on May 15, 2018, and continuing, her reasonable accommodation request for a spot closer
to the dock was denied; and

3. on October 17, 2018, November 14, 2018, and November 15, 2018, the Woodstock
Postmaster wrote her up, using a Contract Route Irregularity Reports postal form 5500,
criticizing her conduct and performance.

The Agency dismissed the EEO complaint for failure to state a claim. It reasoned that Complainant
was a contractor, not an employee of the Agency. The instant appeal followed.

ANALYSIS AND FINDINGS

The matter before us is whether the Agency properly dismissed Complainant’s complaint for
failure to state a claim on the basis that she was not its employee. 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 therewith.

In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016),
the Commission reaffirmed its long-standing position on “joint employers” and noted it is found
in numerous sources. See, e.g., EEOC Compliance Manual Section 2, “Threshold Issues,” Section
2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual)3; EEOC Enforcement Guidance:
Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), “Coverage Issues,” Question 2;
Ma v. Dep’t of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29,
1998). We reiterate the analysis set forth in those decisions and guidance documents in this
decision.

2 We have added this basis to better capture Complainant’s claim. While she did not check a box
in her EEO complaint alleging reprisal discrimination, the EEO counselor indicated Complainant
raised reprisal, and she does so again on appeal.

3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector
appellate decisions, are available online at www.eeoc.gov.

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Agencies often conclude that an individual is not an employee based solely on the fact that the
individual performs work pursuant to a contract between the federal government and an outside
organization and the outside organization, not the federal government, controls the pay and
benefits of that individual. See, e.g., Helen G. v. Dep’t of the Army, EEOC Appeal No.
0120150262 (Feb. 11, 2016); Nicki B. v. Dep’t of Educ., EEOC Appeal No. 0120151697 (Feb. 9,
2016). These elements are just two of the factors relevant to joint employment under the
Commission’s long-standing position and it is not at all surprising that they would be present when
an individual working under a federal contract for a federal agency raises a complaint of
discrimination.

The term “joint employer” refers to two or more employers that each exercises sufficient control
of an individual to qualify as the worker’s employer. Compliance Manual, Section 2-
III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control,
EEOC considers factors derived from common law principles of agency. See Enforcement
Guidance, “Coverage Issues,” at Question 2. EEOC considers, inter alia, the Agency’s right to
control when, where, and how the worker performs the job; the right to assign additional projects
to the worker; whether the work is performed on Agency premises; whether the Agency provides
the tools, material, and equipment to perform the job; the duration of the relationship between the
Agency and the worker whether the Agency controls the worker’s schedule; and whether the
Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg.,
Inc., 550 F.App’x 253, 256 (6th Cir. 2013) (“Entities are joint employers if they 'share or co-
determine those matters governing essential terms and conditions of employment'”) (quoting
Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos.
01962389 & 01962390.

The language of the contract between the agency and the staffing firm is not dispositive as to
whether a joint-employment situation exists. In determining a worker’s status, EEOC looks to
what actually occurs in the workplace, even if it contradicts the language in the contract between
the staffing firm and the agency. Baker v. Dep’t of the Army, EEOC Appeal No. 01A45313 (Mar.
16, 2006) (while contract between staffing firm and agency provided that contract personnel were
employees of staffing firm under its administrative supervision and control, agency actually
retained supervisory authority over the contract workers).

On the factor of the right to control when, where, and how the worker performs the job and to
assign additional projects, complete agency control is not required. Rather, the control may be
partial or joint and still point to joint employment. Shorter v. Dep’t of Homeland Sec., EEOC
Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments,
this pointed to joint employment); Complainant v. Dep’t of the Navy, EEOC Appeal No.
0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430
(Mar. 11, 2016) (where staffing firm wrote and issued complainant’s appraisal with input from
agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm
provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin
v. Dep’t of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012).
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Similarly, where a staffing firm terminates a worker after an agency communicates it no longer
wants the worker’s services, this supports a finding that the agency has joint or de facto power to
discharge the worker. See, e.g., Complainants v. Dep’t of Justice, EEOC Appeal Nos. 0120141963
& 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App’x at 254, 256
(where defendant removed staffing firm’s workers from job site without challenge from staffing
firm, and after such removals staffing firm generally fired worker, this pointed to joint
employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015).
The EEOC considers an entity’s right to control the terms and conditions of employment, whether
or not it exercises that right, as relevant to joint employer status. Enforcement Guidance,
“Coverage Issues,” at Question 2, Example 5 (where an entity reserves the right to direct the means
and manner of an individual’s work, but does not generally exercise that right, the entity may still
be found to be a joint employer).

In assessing the right to control, EEOC does not consider any one factor to be decisive and
emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an
individual performs work pursuant to a contract between the federal government and an outside
organization and is paid and provided with benefits by that organization, on its own, is not enough
to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances
in the individual’s relationship with the agency should be considered to determine if the agency
should be deemed the worker’s joint employer. Enforcement Guidance, “Coverage Issues,” at Qs.
1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the
requisite right to control the means and manner of the individual’s work, regardless of whether the
individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2.

Issues 2 and 3

For Complainant’s carrier work, the HRC contract route service order statement of work and
specifications show the Agency had the right to control the means and manner of Complainant’s
performance via various requirements, e.g., the begin and end times for “casing” - sorting the route
mail, turn by turn directions on the route she traveled to deliver mail, vehicle requirements,
including maximum vehicle age, giving the Agency the right to require additional trips,
requirements on personal appearance, including wearing uniform clothing purchased from an
authorized supplier designated by the Agency, and undergoing a background investigation
including completing various forms and providing fingerprint cards. Further, because Complainant
worked at an Agency facility, the Agency had the right and did control where she parked her
vehicle when serving as a carrier, i.e., whether to grant or deny her requested parking location by
the dock. For her carrier work, the Agency had the right to correct Complainant’s conduct and
performance via Contract Route Irregularity Reports, which were issued using the name of the
“driver” – Complainant. For example, Complainant wrote that on October 17, 2018, after seeing
that in response to her request for reasonable accommodation the Postmaster reserved a spot for
her further than necessary from the dock, she got upset and used profanity, the Postmaster
disparately treated her by writing her up for using profanity.
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The other two writes ups by the Postmaster on Complainant are in the record and were for her one
day not giving the office enough notice when she did not cover the route, and on another day for
not taking all mail from the post office.

Regarding the carrier work, there are other indicia that Complainant is an employee who under
common law is employed by the Agency. Complainant worked on Agency premises, the contract
indicated she may be using Agency equipment, i.e., a scanning device, at the time of the events in
her EEO complaint she had served the Agency as a carrier for nearly 20 years, carrier work does
not require a high degree of skill, and delivering mail is the Agency’s mission. Also, while this
portion of the HCR contract is not in the record, in its FAD the Agency represented that Agency
personnel may terminate the contract for cause, or for convenience if the service is no longer
needed – which shows the Agency had the right to control whether Complainant served the Agency
and worked “for” her daughter. Accordingly, we find that under common law Complainant is an
employee who is employed by the Agency.

In its FAD, the Agency cited two Commission cases from 2000 and 2001, one involving an HCR
contract and another an HCR or like contract where the Commission ruled the complainants were
not to be employees of the Agency. In a more recent case, however, the Commission found that a
complainant working via an HCR contract was a common law employee of the Agency. Pugh v.
United States Postal Service, EEOC Appeal No. 0120121010 (Jun. 15, 2012).

Accordingly, the Agency’s dismissal of issues 2 and 3 is reversed.

Issue 1

Complainant writes that she served the Agency as a Cleaner for five years, and while out because
her second leg was being amputated, the Postmaster advised Staffing Firm 1 that her cleaning was
substandard, resulting in Staffing Firm 1 terminating her contract. Complainant represents that in
the months leading up to her second amputation, which was not planned, she used crutches while
cleaning, her performance would have improved once she got her prosthetic, and her work was
better than others who performed the job. While the Agency’s contract with Staffing Firm 1 is not
in the record, in its FAD the Agency represented that it allowed the Agency to terminate the
contract for just cause. In his report, the EEO counselor wrote that the Postmaster said he did not
initiate a report to Staffing Firm 1 on Complainant’s work, rather he responded to an inquiry by
Staffing Firm 1. In her April 9, 2019 appeal brief, Complainant wrote that Staffing Firm 1
terminated her contract due to the Agency reporting her work was subpar and because she hired
her sister to do cleaning work for her.

On Complainant’s Cleaner job, we do not have enough information to make a determination on
whether she was an employee and was jointly employed by Staffing Firm 1 and the Agency. There
is virtually no information in the record on Complainant’s relationship with Staffing Firm 1, e.g.,
was her pay based on the hour or by a fixed amount per cleaning, did it provide her benefits such
as leave, and did Staffing Firm 1 pay and withhold social security taxes? Did Staffing Firm 1, the
Agency or both supervise Complainant’s cleaning or direct or provide guidance thereon?
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Did Staffing Firm 1, the Agency, or both provide Complainant cleaning equipment and supplies,
in whole or part? Did Staffing Firm 1 make an independent decision to terminate Complainant
after an independent investigation or inquiry by Staffing Firm 1, and what was the grounds for the
termination? Because there is insufficient information to determine whether under common law or
otherwise whether Complainant was an employee Cleaner who under common law was jointly
employed by the Agency, the Agency’s dismissal of issue 1 is reversed.

With regard to the entire complaint, the Agency found that contract disputes are governed by the
Contract Disputes Act of 1978, which provides they may be appealed to the Postal Board of
Contract Appeals, making Complainant’s EEO complaint a collateral attack on the contracts
dispute process. The Agency has made this finding before, and it was rejected in Pugh.

The FAD is REVERSED. The Agency shall comply with the order below.

ORDER
The Agency is ordered to process issues 2 and 3, as defined herein, in accordance with 29 C.F.R.
§ 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received issues
2 and 3 within thirty (30) calendar days of the date this decision was issued. The Agency shall
issue to Complainant a copy of the investigative file on issues 2 and 3 and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision was issued, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing on issues 2 and 3 the Agency shall issue
a final decision within sixty (60) days of receipt of Complainant’s request.
On issue 1, the Agency shall gather information on whether, regarding being a Cleaner,
Complainant under common law or otherwise was an employee who under common law was
jointly employed by the Agency, using the guidance herein and Commission cases and guidance.
Thereafter, the Agency shall either accept issue 1 for investigation, or issue a FAD dismissing
issue 1 with appeal rights to the EEOC within 65 calendar days of the date of this decision.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
on issues 2 and 3 must submit using the method therein: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative
file and notice of rights, 3) either a copy of the complainant’s request for a hearing, a copy of
complainant’s request for a FAD, or a statement from the agency that it did not receive a response
from complainant by the end of the election period, and 4) for issue 1 a copy of the acceptance
letter or FAD.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
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which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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 (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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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

August 23, 2019
Date