0120152305
05-20-2016
Otis B.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Food and Drug Administration (FDA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Otis B.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Food and Drug Administration (FDA)),
Agency.
Appeal No. 0120152305
Agency No. HHS-FDAOC-037-15
DECISION
Via letter received by the Equal Employment Opportunity Commission (EEOC or Commission) on June 29, 2015, Complainant filed a timely appeal from the Agency's decision dated June 2, 2015, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 12 serving as Lead - Contingency Planning & Disaster Recovery, and Acting Project Coordinator at the Agency's FDA Office of Information Management and Technology, Information Security Service, Mission Assurance Branch, Contingency Planning and Disaster Recovery Team in North Bethesda, Maryland.
On April 7, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his age (63) when after terminating its contract with Staffing Firm 1, it instructed successor Staffing Firm 2 not to hire him, resulting in his being terminated upon the elapse of Staffing Firm 1's contract on January 11, 2015. Staffing Firm 2 had two subcontractors (Subcontractors 1 and 2). Complainant contends that he applied for a position with Staffing Firm 2 that was nearly identical to the position he had, and applied for other unspecified positions with Subcontractor 1.3
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency.
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:
1. The employer has the right to control the manner and means by which the work is accomplished.4
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in 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.
Id. 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. 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 maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). 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 criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered 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, at Coverage Issues Question 2.
Complainant alleged that after he learned the Agency's contract with Staffing Firm 1 for the program he worked in and one other program was not renewed, and Staffing Firm 2 and Subcontractors 1 and 2 were taking over these areas, he called Staffing Firm 2's Program Manager and asked if they would consider employing Staffing 1 employees. Complainant wrote that the Staffing Firm 2 Program Manager said Staffing Firm 1 employees would have to apply for positions with Staffing Firm 2, and that Staffing Firm 2 and Subcontractors 1 and 2 would hold joint interviews for candidates and decide who to employ. Complainant wrote that on January 8, 2015, he reached out and talked to two representatives from Staffing Firm 2 and Subcontractor 2 when they visited the Agency premises. According to Complainant, the Agency FDA Compliance Branch Chief cut off the conversation, and when the two representatives returned from talking to the Agency FDA Deputy Division Director, they suddenly did not have time to talk to him.
Complainant alleged that after on January 11, 2015, after his separation, he formally applied for several positions listed on the website of Subcontractor 1. Complainant alleged that on January 21, 2015, he was informed by a former co-worker (CW1) that CW1's job interview with Subcontractor 2's recruiter was canceled - with the recruiter explaining the Agency in writing instructed Staffing Firm 2 not to recruit staff from the former contract.
In a conclusory fashion in its FAD, the Agency found that it did not have an employment relationship with Complainant. It did not gather information on the common law control factors other than from Complainant. To the extent that the Agency has not contested Complainant's factual contentions regarding the control factors of the position he held with Staffing Firm 1, we accept them here. While we find that Complainant showed that the Agency jointly employed him for the position he held with Staffing Firm 1, he has not made this with showing with regard to the position for which he applied.
Regarding the position he held with Staffing Firm 1, Complainant contended without contest that the Agency set the priorities and scope of his work, and exercised complete supervision of his work and acceptance thereof. He contended without contest that Staffing Firm 1 had a very limited role in his day to day work, and almost no role in directing what he did. Complainant contended without contest that the Agency initially permitted him to telework three or four days a week, but in 2014 revoked this, requiring him to work daily on Agency premises. Complainant also contended without contest that while Staffing Firm 1 wrote his performance appraisals, they were based almost exclusively on the input and feedback from Agency employees. Complainant contended without contest that he worked on Agency premises using Agency equipment, and that he served the Agency since December 2008, and we note that the Agency is in the business of government.
But the Agency did not develop the record on whether control factors changed on the position Complainant held with Staffing Firm 1 after Staffing Firm 2 and its subcontractors succeeded Staffing Firm 1 - e.g., was Staffing Firm 2 and its subcontractors as hands off as Staffing Firm 1, and did the Agency maintain actual supervision over the position. Also, significantly, the Agency did not develop the record on the extent of its control over the hiring process, if any. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (Complainant applied and was not selected for a position with a staffing firm which served the Agency. The Agency controlled the selection process by retaining authority to accept or reject individuals identified by the staffing firm for employment, and retained supervisory control over the job. The agency had sufficient control over the position to qualify as a joint employer thereof).
In her report, the equal employment opportunity (EEO) counselor wrote that the Agency Contractor Officer Representative (COR) stated he did not have hiring authority for the contract for either Staffing Firm 1 or 2. But the Agency did not develop the record on Complainant's claim that an Agency official in writing blocked the hiring of Staffing Firm 1 employees on his and another project area. Further, while an Agency may not have official hiring authority, it may still have control over the hiring process in other ways.
Accordingly, the FAD is REVERSED. The Agency shall comply with the order below.
ORDER
On remand, in accordance with guidance in this decision, the Agency shall gather information on the common law control factors for determining joint employment on the position for which Complainant applied that was nearly identical to the one he held with Staffing Firm 1. This shall include developing the record on the extent of the Agency's control over the hiring process.
Thereafter, the Agency shall either accept the complaint in writing, or issue a new FAD dismissing the complaint. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.5
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 (M0416)
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 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. The requests 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 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
May 20, 2016
__________________
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 To meet the requirements of being a small business, around 2014 Staffing Firm 1 created a new business structure and contracted with the Agency as such, but continued all functions and responsibilities previously performed.
3 In terms of where he applied, Complainant has used Staffing Firm 2 and Subcontractors 1 and/or 2 interchangeably. We find that Complainant's complaint regards the Agency preventing him, based on his age, from being hired with Staffing Firm 2 and/or Subcontractors 1 and 2 for the position which was nearly identical to the one he held with Staffing Firm 1. Complainant used his service in this position to argue the Agency jointly employed him, and has not identified or discussed in any detail any other position for which he applied.
4 Another factor is whether the employer can discharge the worker. 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). This factor is especially significant in termination cases.
5 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
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