0120092496
09-09-2009
Matthew Taranto, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Matthew Taranto,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092496
Agency No. DOT-2009-22441-FAA-01
DECISION
Complainant filed a timely appeal with this Commission from a
final agency decision dated May 7, 2009, dismissing his 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.
During the relevant period, Fedcap Rehabilitation Services (Fedcap) had
a contract to provide custodial services at the agency's facilities.
Fedcap placed complainant as a Custodian at the agency's Westbury,
New York facility. In a formal EEO complaint dated February 14,
2009, complainant alleged that the agency discriminated against him
on the basis of disability (Aspberger's Syndrome) when his employment
was terminated in September 2008. In its May 7, 2009 final decision,
the agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim, stating that complainant was
not an agency employee. The instant appeal from complainant followed.
The record shows that complainant also filed a separate charge of
discrimination against Fedcap with the New York District Office of the
EEOC, which was docketed as EEOC Charge No. 846-2008-60423. The matter
was assigned to the Boston Area Office for investigation and, on May 15,
2009, that office issued a letter stating:
There is no dispute that the [agency] made a decision to terminate
[complainant's] employment but the decision was not made by [Fedcap]
. . . Since the [agency] is a federal agency and EEOC [private sector
complaint process] has no jurisdiction over this employer, EEOC cannot
conclude that [Fedcap] was causally connected or associated in any
capacity in the decision that was made by the [agency] to terminate
[complainant's] employment.
In this appeal, the Commission must 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. 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) (hereinafter referred to as the
"Guidance") (available at www.eeoc.gov.), we have recognized that a
"joint employment" relationship may exist where both the federal agency
and the "staffing firm" may be deemed employers.1 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,2 whether or
not the individual is on the federal payroll. See Guidance, supra at 11.
Based on the legal standards and criteria set forth herein, and the
finding of Commission's field office that it was the agency and not Fedcap
that was responsible for complainant's termination, we conclude that
the agency exercised sufficient control over the complainant's position
to qualify as a joint employer of complainant. See generally, Baker
v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Accordingly, we must REVERSE the final agency decision dismissing
complainant's claim and REMAND the matter to the agency for further
processing consistent with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded complaint 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
September 9, 2009
__________________
Date
1 Contingent workers generally refer to workers who are outside an
employer's "core" work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers may
be hired by "staffing firms" which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
2 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). 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. See Ma,
supra. 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.
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0120092496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092496