Irvin M.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 15, 2019

2019001878 (E.E.O.C. Aug. 15, 2019)

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

Irvin M.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 2019001878

Agency No. GSA-19-CO-I-0020

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 13, 2019, dismissing his 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant was employed by Artech Contracting Company
(hereinafter “Artech”), who was a sub-contractor for Leidos Contracting Company. Leidos, in
turn, was in a contract with the Agency. On September 10, 2018, Complainant was terminated
from his Strategic Capital Planner position. Believing that his termination was due to his race
(Asian), national origin (Indian), color (brown) and/or sex, he filed a formal EEO complaint on
January 17, 2019.

In its decision, the Agency dismissed the complaint for failure to state a claim, reasoning that
Complainant was not an Agency employee. According to the Agency’s dismissal decision,
Complainant was hired and supervised by the Project Control Manager, a Leidos employee
(hereinafter “Leidos Manager”). The Agency stated that Complainant’s pay rate was set by

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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Leidos, he was paid by Artech, he worked at Leidos offices, his leave was processed by Artech
and Leidos, and the Agency did not provide him retirement or health benefits.

Complainant filed the instant appeal. On appeal, Complainant argues the merits of his claim,
challenging the reasons for his termination and comparing his treatment with a colleague outside
his protected bases. Additionally, he contends that GSA provided him with a laptop, a GSA
credential, and GSA systems account. He also states that a GSA employee “sponsored” him.

In response, the Agency, without elaboration, requests that its decision, finding that Complainant
lacks standing, be affirmed. Further, it asserts that Complainant’s illegible statements on appeal
should be “stricken from the record.”

ANALYSIS AND FINDINGS

As noted above, the Agency dismissed the instant complaint for failure to state a claim on the
basis that Complainant 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.

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)2; 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.

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.

2 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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The term “joint employer” refers to two or more employers that each exercise 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). 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
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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.

Here, we find that the instant record is insufficient to support the Agency’s dismissal. The
complaint file provided by the Agency simply contains a copy of the final decision, the EEO
Counselor’s Report, and emails between the Counselor and Complainant. While dismissals
based upon a worker’s lack of standing should not rely exclusively on the contract, in this case
the Agency has not even provided a copy of the contract. The record does not include, for
example, affidavits describing the daily conditions of Complainant’s job. In sum, the Agency
has not submitted any evidence to support its conclusions regarding the various factors it cites in
its decision. Moreover, Complainant’s statements on appeal challenge some of the Agency’s
assertions.

The Agency has the burden to provide evidence or proof to substantiate its final decision. See
Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014) quoting
Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). In this case, the
Agency has failed to meet its burden.

CONCLUSION

The Agency’s decision dismissing the complaint was improper and is REVERSED. The matter
is REMANDED to the Agency for further processing in accordance with the Order below.

ORDER (E0618)
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 was issued. 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 was
issued, 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.
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As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 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, and 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.
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 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.
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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.
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
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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 15, 2019
Date