0120114324
12-18-2012
Katrina I. Makuch, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.
Katrina I. Makuch,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.
Appeal No. 0120114324
Agency No. 2011-OSD-041
DECISION
On September 26, 2011, Complainant filed a timely appeal1 with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 25, 2011, 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 the initial events giving rise to this complaint, Complainant was an employee of Rising International, a nonprofit organization located in Santa Cruz, California. Under an Intergovernmental Personnel Act (IPA) Assignment Agreement, Complainant served the Agency's Business Transformation Agency, Task Force for Business & Stability Operations (TFBSO) as a Liaison Officer in the North Atlantic Treaty Organization's (NATO) International Security Assistance Force's (ISAF) Force Reintegration Cell (FRIC) in Afghanistan.
Under the IPA agreement Complainant was to serve TFBSO from September 2010 to November 2011 by coordinating TFBSO and ISAF insurgent reconciliation and reintegration efforts.
On June 29, 2011, Complainant filed a formal EEO complaint, as amended, alleging that she was discriminated against and harassed by the Agency:
1. Based on sex (female) when on February 1, 2011, in an aggressive and combative matter, an IBM contractor refused her request for a meeting to discuss his workload and responsibilities unless the contract Program Manager, or the Community Recovery Supervisor with the U.S. Air Force approved it; 2
2. Based on sex and reprisal for prior EEO activity under Title VII3 when on February 1, 4, 25, 28, and March 12, 2011, the following management officials (her Agency TFBSO supervisor, who is located in Arlington, Virginia; the FRIC Director, a Major General with the British Service; the FRIC Program Director who was with the British Service; the Community Recovery Supervisor; and the contract Program Manager) failed to take her complaints about an IBM contractor seriously, saying things such as "perhaps you are not a good fit for the FRIC" and if I were you I would find another position which would make me happier" 4;
3. Based on her sex when on February 4, 2011, the IBM contractor "got into her face" asserting Complainant should provide more detailed briefing information to him when she was about to go on leave and was pressed for time since she was on her way to the airport;
4. Based on sex and reprisal when on or about March 2011, the FRIC Director, the FRIC Program Director, and the Community Recovery Supervisor put in a two-week notice on her behalf that she was leaving FRIC, an action she had no intention of taking and which she never authorized;
5. Based on her sex and reprisal for prior EEO activity when on May 16, 2011, she became aware that her position at the ISAF/FRIC was eliminated, and she was reassigned to Arlington, Virginia; and
6. Based on her sex and reprisal for prior EEO activity when on July 11, 2011, she was terminated by her Agency TFBSO supervisor.
The Agency dismissed the complaint for failure to state a claim, finding that for purposes of Title VII, Complainant was an employee of Rising International, not the Agency. It reasoned that, under the IPA Assignment Agreement, Complaint was temporarily detailed to the Agency, and hence was not hired by it; that her work required a high degree of skill and was performed without supervision, and that she received her pay, annual leave, and benefits from Rising International. The Agency also found that under the IPA, 5 U.S.C. � 3374 et seq., Complainant remained an employee of Rising International for purposes of Title VII and the 29 C.F.R. Part 1614 EEO complaint process.
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. 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).
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 when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer;
11. The worker is not engaged in his/her own distinct occupation or 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 (i.e., the employer withholds federal, state, and Social Security taxes);
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
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. In sum, the test to determine employment status often turns on whether the employer controls the means and manner of the worker's work performance. 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); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
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. There are different types of staffing firms. For the purposes of the 29 C.F.R. Part 1614 EEO complaint process, the federal government may qualify as the joint employer of a worker assigned to it by a staffing firm if the federal agency involved has sufficient control over the worker, regardless of whether the worker is on the federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, a federal agency may be found to be a joint 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, Staffing Service Work Arrangements section. The test to determine employment status turns on whether the employer controls the means and manner of the worker's work performance. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, page 2-25.
Factors 1, 3 - 6, 8 - 11, and 14 Indicate that the Agency Is Complainant's Joint Employer
The parties identified an Agency Senior Program Analyst with the Business Transformation Agency (Complainant's TFBSO supervisor) as Complainant's supervisor in the IPA agreement. While Rising International supplied Complainant's leave, the IPA agreement indicated use of leave was to be approved by the above Agency supervisor and then reported to Rising International. On appeal, Complainant contends that she was given direction on how to perform her duties in a matter satisfactory to TFBSO and ISAF by her Agency supervisor, and was in no way supervised by Rising International. The record reflects that the Agency had the right to assign additional projects to Complainant, i.e., she contended that after the Agency reassigned her in May 2011 to Arlington, Virginia, it instructed her to complete coursework in acquisitions at the Defense Acquisition University (factors 1 and 6).
On appeal, the Agency concedes that it provided Complainant the necessary equipment and facilities in Afghanistan to perform her work (factors 3 and 4). The IPA agreement provided for a continuing relationship of over a year between the parties (factor 5). Complainant was paid a salary on an annualized basis, rather than the agreed cost of performing a particular task (factor 8). There is no evidence that Complainant hired or paid assistants, or that she engaged in her own distinct occupation or business (factors 9 and 11). The work Complainant performed of providing coordination between TFBSO and ISAF on insurgent reconciliation and reintegration efforts was part of the Agency's regular mission (factor 10). The Agency could discharge Complainant, and did so. On appeal, Complainant writes that after she was terminated she did not have the option to return to Rising International because her IPA was terminated early (factor 14).
We are unable to discern from the record whether the Agency set Complainant's work hours (factor 7), and hence this factor does not point in any direction.
Factors 2, 12 and 13 Indicate that Complainant May not be an Employee of the Agency
Complainant's work required a high level of expertise (factor 2). The Agency did not provide Complainant with benefits or withhold taxes from her wages (factors 12 and 13).
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the EEO complaint process.5
CONCLUSION
The FAD is REVERSED. The Agency shall comply with the Order below.
ORDER (E0610)
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 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 (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 (M0610)
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 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 (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 (Z0610)
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
December 18, 2012
__________________
Date
1 The Agency asserts that Complainant's attorney received the FAD on August 26, 2011, and hence the appeal on September 26, 2011, was untimely filed. The time limit to file the appeal was 30 calendar days from receipt by Complainant's attorney of the FAD. 29 C.F.R. � 1614.402(a) & (b). In calculating time limits, the first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday, or Federal holiday, in which case the period shall be extended to include the next business day. 29 C.F.R. � 1614.604(d). Assuming the attorney received the FAD on August 26, 2011, the 30th day fell on Sunday, September 25, 2011, making Complainant's appeal on September 26, 2011 timely.
2 Complainant wrote that while in FRIC she reported to the Community Recovery Supervisor, and worked with the contract program manager and IBM contractor.
3 All of Complainant's reprisal claims are based retaliation for prior EEO activity under Title VII.
4 Complainant wrote that while in FRIC she also reported to the FRIC Director and the FRIC Program Director.
5 While we are find that the Agency jointly employed Complainant, we are making no finding on the extent to which the Agency was in a position to prevent alleged harassment in Afghanistan by non-Agency personnel. The Agency argues that under the Intergovernmental Personnel Act, Complainant is an employee of Rising International, not the Agency, and cites an old EEOC case in support of this. After a close review of the Intergovernmental Personnel Act, we could not find any provision indicating how those on loan from state or local governments or other organizations to a federal agency are to be viewed for purposes of an employment relationship under Title VII and the federal administrative EEO complaint process. Accordingly, we find that that the Intergovernmental Personnel Act does not preempt Commission case law and policy on determining whether there is an employment relationship.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120114324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114324