0120091884
07-07-2009
Janice W. Haskins, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Janice W. Haskins,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091884
Agency No. HS-08-ICE-007640
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 24, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed for failure to state a claim.
During the relevant period, complainant worked as an Employee Services
Consultant with an agency facility in Washington, DC, under a contract
between the agency and STG International (STG). In a formal EEO complaint
dated December 11, 2008, complainant alleged that the agency subjected
her to hostile work environment harassment on the bases of race (Black),
sex (female), and reprisal for prior protected EEO activity when the
Contracting Officer Technical Representative (COTR) made demeaning
comments to complainant, such as "[I]f you don't like [the new placement
of offices], you can get another job" or "Good Morning Contract Staff;"
commented that contract staff would not receive the same office equipment
as government employees; tried to convince STG that complainant submitted
inaccurate timesheets; discussed what contractors earn with others
and asked a travel coordinator whether complainant planned to get a
rental car while on travel; asked STG to stop contractors from working
alternative work schedules (AWS) and denied complainant's AWS requests;
and provided complainant with the smallest, least desirable cubicle.
Also, complainant alleged that she was the only contract employee who
did not receive a monetary award.
In its February 24 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim. Specifically, the agency found that complainant was not an agency
employee, but rather an employee of an independent contractor assigned
to the Federal agency - STG. The agency stated that complainant did not
dispute that she was an employee of STG or that STG paid complainant's
salary, provided her benefits, approved her leave requests, monitored
her work performance, and discussed any work-related matters with an
on-site representative. Summarily, the agency stated that STG controlled
all aspects of complainant's performance. The instant appeal followed.
On appeal, complainant stated that the agency exercises the requisite
control over her employment such that it is a joint employer with STG.
Complainant stated that she works in an office that conducts a regular
part of agency business as it advises management on employee/personnel
matters; has worked for the agency since October 2003 and intends to
continue working there; receives assignments from agency employees who
determine the type, amount, nature and complexity of complainant's work
assignments; can be discharged by the agency at will; has to perform
her work on agency premises; has to have leave time approved by the
agency; has her work schedule determined by the agency; and travels
for the agency to train management and testify in third party hearings.
Complainant acknowledged that she is paid by the total number of hours
worked through STG and that she does not receive annual leave, retirement
benefits, or the payment of social security taxes from the agency or STG.
Complainant provided documentation to support her contentions and asked
that we reverse and remand the agency's dismissal.
Before the Commission can consider whether the agency has discriminated
against a complainant in violation of Title VII, we must first
determine 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, an amended, 42 U.S.C. 2000e-16(a) et seq.
The Commission has applied the common law of agency test to determine
whether an individual is an agency employee under Title VII. See Ma,
supra (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318,
323-24 (1992)). Specifically, the Commission will look to 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. Id. 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)
(Guidance), 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.
Based on the legal standards and criteria set forth herein, we find
that the agency was a joint employer of complainant. Said finding
is based on application of the Ma criteria to the totality of the
circumstances. Accordingly, we REVERSE the agency's final decision
dismissing complainant's complaint and REMAND the matter of a hostile
work environment to the agency.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K1208)
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 (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 (R0408)
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 (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
July 7, 2009
__________________
Date
2
0120091884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091884