0120180957
07-17-2018
Joanna G.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joanna G.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180957
Agency No. ARFTCAMP17AUG03920
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 31, 2017, dismissing her complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and 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 a staffing firm serving the Agency first in the position of Counseling Support (July 5, 2016 - January 15, 2017) and then as a Test Examiner (January 16, 2017 - September 15, 2017) at its SSG Glenn H. English, Jr. Army Education Center in Fort Campbell, Kentucky.
On October 20, 2017, Complainant filed an equal employment opportunity (EEO complaint) with the Agency. The Agency defined the complaint as follows:2 whether the Agency discriminated against Complainant based on her race/color (African-American/Black), sex (female), disability, and/or reprisal for prior protected EEO activity when:
1. The Agency and staffing firm were reluctant to provide reasonable accommodation in response to her requests for ergonomic equipment, and did not provide it.
2. The Performance Work Statement was inconsistent with the physical requirement of the Counseling Support position, which required 50% walking and 50% standing within two separate work areas.
3. Because of Agency interference and at its direction, the staffing firm changed her duties, hours, and work location from the Counselor Support position to the Test Examiner position. The latter job required 60% walking and 40% sitting, resulting in her changing from sitting to standing much more frequently, exacerbating her physical symptoms.
4. Thereafter, the staffing firm revoked the benefit of sick leave, violating the Family and Medical Leave Act (FMLA), which requires employers to grant up to 12 weeks of leave during a 12-month period to employees who need time off because of serious health conditions.
5. The Agency and staffing firm personnel created a hostile work environment that was intimidating, humiliating, offensive, bullying, abusive, systematically isolated her, subjected her to repeated unfavorable comments about her disability, race, and sex, subjected her to questioning of her qualifications, blatantly disregarded her need for reasonable accommodation, and subjected her to advice that she quit and draw social security benefits.
6. She was constructively discharged when she sought alternative employment opportunities, received a job offer with another private contractor later withdrawn, resulting in her asking to rescind her resignation with the staffing firm which was not accepted, leaving her unemployed.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency, but rather was employed by the staffing firm.
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.
We begin our analysis by noting that some agencies have not applied the Commission's long-standing position on the issue of joint employment, a position that the Commission has announced many times and in several formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings. In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016), the Commission recently reaffirmed its long-standing position on "joint employers" and noted it is found in numerous sources. The sources include 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.
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; 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 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. 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.
The only facts in the record gathered by the Agency's EEO office pertaining to joint employment were in response to inquiries it made to the Agency Education Services Officer. The record does not contain information gathered by the EEO office from any other sources, including Complainant and the staffing firm's on-site supervisor(s). The Education Services Officer's responses were cryptic, and contained little information on significant control factors. For example, the Education Services Officer stated that the staffing firm's onsite senior examiner assigns how/who completes what tasks. But he did not indicate what this means in practice. For example, does the onsite supervisor have standing orders/direction on who does what assignment and how, versus who makes assignments to Complainant daily and provides her guidance daily - Agency personnel, staffing firm personnel, or both. Also, the Education Services Officer stated that the Agency provides no feedback to the staffing firm on individual performance. However, he also stated the Agency does monthly surveillance quality assurance reports to ensure contract requirements are met, and the record does not show if the reports are written in a way that individuals can be identified, or whether they are forwarded to the staffing firm.
Further, in opposition to Complainant's appeal, the Agency points to an analysis by an Agency attorney on joint employment. In writing that the Agency exercised no control over Complainant in the daily execution of her duties, the attorney pointed to language in the contract between the Agency and the staffing firm's general contractor that: "[t]he government will not exercise any supervision or control over the contract service providers performing services herein...." Despite this contract language, there is little evidence to determine whether or not this accurately reflect the reality of what occurs in the workplace. The only way to know this is by the Agency gathering information from people in Complainant's workplace, including Agency personnel, Complainant, and staffing firm personnel.
In her complaint, Complainant contended that that she was reassigned at the direction of the Agency by the staffing firm from the position of Counselor Support to Test Examiner. If this is true, or if the Agency somehow had input or partly caused this to occur, this would indicate some Agency control over Complainant's employment.
Accordingly, the FAD is reversed, and on remand the Agency shall gather more information on whether it is Complainant's common law joint employer.
In reviewing Complainant's complaint, it appears that some of Complainant's allegations regard actions in which she contends the staffing firm is solely responsible. An example is the staffing firm eliminating sick leave as a benefit. On remand, the Agency shall advise Complainant that her instant EEO complaint is governed by 29 C.F.R. Part 1614 process, which has no jurisdiction over the staffing firm and can only obtain relief from the Agency. The Agency shall advise Complainant that if she wishes to file a charge of discrimination against the staffing firm, this is a separate process which can be pursued simultaneously with the federal sector process, and if she responds that she wishes to file a charge against the staffing firm, the Agency shall advise her to contact the appropriate EEOC field office to pursue the private sector charge.
After reviewing the complaint, it appears that the Agency missed allegations. For example, Complainant alleged that she applied for the positions of Counseling Support with Skills Program, Program Manager with Workforce Essentials, and so forth, and she was not selected despite being better qualified than other candidates. Complaint file, at 74. The Agency did not capture this claim. If Complainant applied directly with the Agency for these positions, then she would be an applicant covered by the federal sector process. Even if these positions were with staffing firms, Complainant stated that the Agency was known to intervene with the hiring and selecting of staffing firm personnel who served the Agency. Id. If the Agency had sufficient control over such hiring decisions and positions, it could be deemed a common law joint employer for hiring purposes, and be within the ambit of the federal sector process. Michell B. v. Office of the Director of National Intelligence, EEOC Appeal No. 0120172545 (Jan. 5, 2018), request to reconsider denied, EEOC Request No. 0520180233 (May 23, 2018). If Complainant wishes to pursue these allegations, and these jobs were with staffing firms, the Agency shall gather information on whether it is a joint employer for hiring purposes on these positions. Also, to the extent Complainant alleges that the Agency had influence over her being hired or assigned around July 2016 by the staffing firm to serve as the Agency, and there are supporting facts, this would be a factor pointing to joint employment.
Further, the Agency's definition of the issues in Complainant's complaint lacks specificity, and must be revised. Where possible, the Agency needs to add specific incidents and dates to the definition of the complaint. Without this, any investigation may lack focus. Also, since the federal sector process does not have jurisdiction over the staffing firm, the Agency's redefinition of the complaint shall not include allegations solely against the staffing firm. The Agency shall contact Complainant and obtain her input into the redefinition of her complaint. Thereafter, the Agency shall reduce the new definition of the complaint to writing and give Complainant an opportunity to indicate if it is correct, and if not, to provide further input.
The FAD is REVERSED. On remand, the Agency shall comply with the Order below.
ORDER
The Agency shall advise Complainant that the federal sector process does not have jurisdiction over the staffing firm, and advise her to contact the appropriate EEOC field office if she wishes to pursue a charge against the staffing firm.
The Agency shall redefine the complaint in accordance with this decision, using the process outlined in this decision.
In accordance with the guidance in this decision, the Agency shall gather more information on whether it was Complainant's common law joint employer for either or both of the positions of Counselor Support and Test Examiner. Thereafter, the Agency shall accept Complainant's complaint in whole or part, or dismiss the entire complaint with appeal rights to EEOC. The Agency shall complete these actions within 90 calendar days of the date of this decision.
The Agency shall provide a copy of the letter accepting Complainant's complaint in whole or part, or a FAD dismissing the entire complaint as instructed directly below.
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.
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 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
July 17, 2018
__________________
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 While we have reworded the Agency's acceptance language to make it more concise, this captures the substance of the Agency's definition.
3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180957
9
0120180957