0120113494
01-06-2012
Kristin Martinez, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Kristin Martinez,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120113494
Agency No. DON 10-43106-00631
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD)
dated May 20, 2011, 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 was
employed with FSS Alutiiq Joint Venture, a private employer. She served
the Agency as a Personnel Specialist II at its Personnel Support
Detachment (PSD) in Great Lakes, Illinois, on a contract between the
government and Alutiiq. Complainant processed Agency travel vouchers.
On March 1, 2011, she filed a formal complaint alleging that the Agency
discriminated against her based on her disability (depression, anxiety,
back) when:
1. effective August 17, 2010, and around November 2010, she was not
hired to slots for the position of Human Resources Assistant, DON0203,
a permanent GS job located in the PSD Great Lakes, for which she applied
under a continuous announcement, and was referred to the selecting
official(s);
2. she was harassed on various dates from October 29, 2010, onward for
taking medical appointments;
3. on November 10, 2010, she made a request to her Agency first and
second line supervisors and another person to change her daily work
schedule to an earlier start time to reasonably accommodate taking medical
appointments without missing work in the afternoon and her request was
denied; she made the same request that day to Alutiiq, and it was not
acted upon;
4. on November 12, 2010, she was harassed in a meeting about her work
attire by at least one Navy employee, a Navy manager, and Alutiiq
personnel, and the Navy manger sent her home to change her clothes; and
5. on November 22, 2010, she was terminated.
The Agency did not define the complaint. We set forth the above claims
based on a reading of the formal complaint, as elucidated by materials
Complainant submitted during intake to the Agency.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that Complainant was an employee of a private contractor,
not the Agency.
On appeal, Complainant, citing to the record, argues that she was an
employee of the Agency.
In opposition to the appeal, the Agency, citing to the record, argues
that Complainant was an employee of Alutiiq, not the Agency. The Agency
asserts that claim 1 regards Complainant meeting with government employees
to discuss her frustration with not getting a permanent federal government
job, and there was no adverse employment action.
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) (citing Nationwide Mutual Insurance Co. v. Darden,
503 U.S. 318, 323-24 (1992).
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:
• The employer has the right to control when, where, and how the
worker performs the job.
• The work does not require a high level of skill or expertise.
• The employer furnishes the tools, materials, and
equipment.
• The work is performed on the employer’s premises.
• There is a continuing relationship between the worker and the
employer.
• The employer has the right to assign additional projects to
the worker.
• The employer sets the hours of work and the duration of
the job.
• The worker is paid by the hour, week, or month rather than the
agreed cost of performing a particular job.
• The worker does not hire and pay assistants.
• The work performed by the worker is part of the regular business
of the employer.
• The worker is not engaged in his/her own distinct occupation
or business.
• The employer provides the worker with benefits such as insurance,
leave, or workers’ compensation.
• The worker is considered an employee of the employer for tax
purposes (i.e., the employer withholds federal, state, and Social
Security taxes).
• The employer can discharge the worker.
• 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. 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).
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. Those that contract with a client to perform
a certain service on a long-term basis and place its own employees,
including supervisors, at the client’s work site to carry out the
service are contract firms. Id. at Introduction section.
Clients of contract firms, including the federal government, qualify
as employers of workers assigned them if the clients have sufficient
control over the workers, 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, the client is an 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.
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
during her entire tenure at the Agency. Complainant worked on Agency
premises and utilized an Agency electronic program to process travel
vouchers. According to the counselor’s report, an Agency employee
who identified himself as Complainant’s first line supervisor stated
Agency supervisors assign the work to contractors and monitor it;
provide daily supervision; and sign and approve leave, i.e., signing
off on it and sending it to Alutiiq. According to the counselor’s
report, the officer-in-charge (OIC), a higher level Agency manager,
stated that government supervisors collect and document information on
poor performance or disciplinary issues, and this is sent to Alutiiq who
can then take action. Alutiiq had two leads on the Agency premises, some
or all the time. According to the counselor’s report, one identified
herself as a lead clerk for Alutiiq who tracked contractors’ time,
did floor checks, and reported to management. She reportedly said that
she had no supervisory authority, and that Agency supervisors provided
the daily supervision to contractors, assigned them work, and monitored
the work. According to the counselor’s report, the second Alutiiq
lead identified herself as the lead for time and attendance, and stated
that while Alutiiq sets the daily hours, the OIC can change them. The
record contains a November 19, 2010, email to Alutiiq by Complainant’s
Agency second line supervisor complaining about Complainant’s conduct
and/or performance, and asking that she be released from her assignment
at the Agency. Alutiiq terminated Complainant the next business day.
The termination letter stated that the Agency asked that Complainant be
removed from its site, and Complainant was removed for violating Alutiiq
standards of conduct and dress code. The above shows the Agency had a
de facto role in Complainant’s termination. We find that the Agency
was a joint employer of Complainant.
We disagree with the Agency that claim 1 regards Complainant expressing
her frustration that she did not get a permanent government job.
A reading of the complaint and record shows it regards Complainant not
getting hired. This matter states a claim regardless of Complainant’s
employment status because it alleges discrimination against Complainant
as an applicant.
The FAD is REVERSED. On remand, the Agency shall comply with the
order below.
ORDER
The Agency is ordered to process the remanded claims, as set forth in this
decision, 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 (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
January 6, 2012
__________________
Date
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0120113494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113494