0120091503
08-11-2009
Pradeep K. Goel, Complainant, v. Alonzo L. Fulgham, Acting Administrator, Agency for International Development, Agency.
Pradeep K. Goel,
Complainant,
v.
Alonzo L. Fulgham,
Acting Administrator,
Agency for International Development,
Agency.
Appeal No. 0120091503
Agency No. EOP0901
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated December 31, 2008, dismissing his 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.
Complainant, a physician, served for the agency from September 2004
to December 2006 as a personal service contractor in the capacity of
reproductive health advisor in Ghana, Africa. Thereafter, he served
for the agency from February or March 2007 to July 2008 as a fellow in
the capacity of senior immunization advisor in Nigeria, Africa.
In his complaint, complainant alleged that he was subjected to
discrimination based on his race (Indian), religion (Hindu), and, as
applicable, reprisal for prior protected opposition EEO activity1 when:
1. while being promised a conversion to five year foreign services status
appointment in Ghana as a federal government employee, he was informed
in October 2004 that this would not occur;
2. in Ghana in October 2005 and November 2005, his supervisor through body
language, tone and words made derogatory expressions against Hinduism;
3. in the summer of 2006 he was informed that his contract in Ghana
would not be extended, and he left in December 2006;
4. in Nigeria starting in March 2007, the deputy team leader repeatedly
yelled "holy cow," even after being told by complainant this was
pejorative to him as a Hindu;
5. in Nigeria starting in February 2008, his second level supervisor,
who lived in the same housing compound as complainant's family, harassed
and acted in a threatening matter toward his family;
6. he learned in March 2008 that the agency submitted negative input
about his performance in Nigeria for his annual review;
7. in Nigeria in April 2008, he was moved into an undesirable cubicle;
8. in Nigeria on June 8, 2008, the agency denied his request for his
annual professional development benefit, a form of training;
9. on June 8, 2008, the agency informed him that his service in Nigeria
would be cut off at the end of September 2008; and
10. he resigned in Nigeria on or about July 8, 2008, a constructive
discharge.2
The FAD dismissed the claims connected to Ghana for failure to timely
initiate EEO counseling. It reasoned that complainant initiated EEO
contact on August 19, 2008, years beyond the 45 calendar day limit to
do so. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The FAD dismissed the
claims occurring in Nigeria for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that complainant was a fellow who was an
employee of the Public Health Institute (PHI), not an employee of the
agency.
On appeal, complainant contends, as he did below, that he was not
aware of the 45 calendar day time limit to initiate EEO counseling.
He further argues that he was jointly employed by PHI and the agency.
In opposition to the appeal, the agency argues that while it does not
maintain EEO offices overseas, the complaint process is posted on the
agency's intranet. It argues that by waiting more than three years to
contact an EEO counselor regarding discrimination in Ghana, complainant
did not act with due diligence and his Ghana claims are barred by the
doctrine of laches. It further argues it is not a joint employer of
complainant.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). Under 29 C.F.R. � 1614.105(a)(2), an agency
shall extend the 45 day time limit to initiate EEO counseling where an
individual shows that he was not notified of the time limit and was not
otherwise aware of it. Complainant consistently contended that he was
unaware of the time limit to seek EEO counseling. The agency argues
that complainant should have been aware because information about the
complaint process is on its intranet site. The record contains no
information on whether this information was prominently displayed on
the intranet site, nor any information on its wording. Accordingly,
we decline to impute knowledge of the 45 day time limit to complainant.
Nevertheless, the Commission has consistently held that a complainant
must act with due diligence in the pursuit of his claim or the doctrine
of laches may apply. See Becker v. United States Postal Service, EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of the
alleged discriminatory events before contacting an EEO Counselor); O'Dell
v. Department of Health and Human Services., EEOC Request No. 05901130
(December 27, 1990). The doctrine of laches is an equitable remedy under
which an individual's failure to pursue diligently his course of action
could bar her claim. Such is the case here. Accordingly, claims 1, 2,
and 3 are dismissed.
The next matter before us is whether the agency properly dismissed
complainant's Nigeria claims. 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 (December 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.
The FAD found that complainant is a fellow who is employed by PHI,3 an
independent, non-profit organization headquartered in Oakland, California.
Relying on a September 13, 2007, agreement between complainant, the
agency, and GHFP via PHI, the FAD found that PHI was responsible for
administering and terminating his employment, providing his scope of
work, that the GHFP Director [who was with PHI] served as his supervisor,
and that an agency team leader in Nigeria served as his onsite manager
providing day to day guidance and assessment of his work and participated
in his annual evaluation. The FAD also found that PHI provided direct
deposit of his payroll checks, as well as health and disability insurance
for him and his family.
Relying on written agency policy on fellows, the FAD found that the agency
and the providing institution (in this case PHI), must rigorously maintain
an arms-length relationship in the selection, placement, and day-to-day
mentoring of fellows; that the providing institution is responsible for
selecting the fellow, to which the agency retains a right to concur; that
although agency employees may provide fellows technical guidance, career
advice, and operational oversight, agency employees may not supervise
fellows; that only the providing institution can approve leave plans,
financial incentives, or discipline of fellows; and fellows may not
perform inherently governmental functions. The FAD concluded that the
agency was not a joint employer of complainant.
A review of the September 13, 2007, agreement also reveals that the
agency agreed to provide full funding for the fellowship, including
a leadership development program; to directly administer the payment
of rent, utilities, residential furniture, security and maintenance
expenses for complainant's residence; to provide office space, furniture,
office supplies and equipment, including a desktop computer, secretarial
support, and internal and external telecommunications systems for
official business; and assist in arranging the shipment of his shipment
of household and personal effects. Individual fellowships are limited
to two years, with extensions permitted up to a total of four years.
Complainant states that the reality of his relationship with PHI and the
agency is somewhat different than those outlined in the FAD. He wrote
that after a brief interview with a PHI human resources contractor,
the agency led the hiring process. The agency required that prior to
the interview, complainant write an essay of up to two to three pages
discussing innovative strategies that could be used by the agency to
support government immunization efforts to accelerate polio eradication
in Nigeria. He also stated that he was interviewed by a three member
panel from the agency's Nigeria mission for over 11/2 hours, and submits
documentation consistent with this. He states that his work was almost
exclusively supervised by the so called agency "on-site manager," and
he only had very trivial contact with his PHI designated "supervisor,"
who was located thousands of miles away [in Washington, D.C.]; that he
performed work central to the agency's mission, i.e., immunization work;
carried a business card with the agency's logo; represented the agency in
all its polio elimination activities at all levels in Nigeria; managed
an agency multimillion dollar project, and reviewed contracts and made
recommendations for funding. In addition, complainant states that the
agency cut off his service with the agency in a face to face meeting,
followed up by an email he provided. Complainant adds that the agency
denied his request for leadership development, and submits an email
supporting this.
In opposition to the appeal, the agency relies on the language in the
September 13, 2007 agreement and various programmatic documents. It does
not submit statements from anyone rebutting complainant's contentions.
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 his employer for the purpose of the EEO complaint process.
The record reflects that in reality the agency was deeply involved in
the decision to hire complainant, supervised his work, held him out as
an agency employee, provided him an office, he performed work that was
an agency core mission, and the agency made the decision to discontinue
his service.
In a footnote about claim 5, the FAD found that complainant's family
members do not have standing in the federal EEO process as they were not
applicants for employment or employees of the agency. We agree. However,
claim 5 states a claim of race, religion, and reprisal discrimination
to the extent actions were directly directed against complainant.
It also states a claim of reprisal discrimination to the extent such
actions were directed against his family which would reasonably deter
complainant from engaging in EEO activity. Rochon v. Gonzales, 438
F.3d 1211, 1219-20 (C.A.D.C. 2006) (alleged retaliation by the Federal
Bureau of Investigation (FBI) against an employee took the form of the
FBI's refusal, contrary to policy, to investigate death threats a federal
prisoner made against the employee agent and his wife. A reasonable FBI
agent well might be dissuaded from engaging in activity protected by
Title VII if he knew that doing so would leave him unprotected by the
FBI in the face of threats against him or his family. Stated a claim
of reprisal discrimination).
Accordingly, the FAD is affirmed in part and reversed in part.
ORDER
The agency is ordered to process claims 4 through 10, as listed in this
decision, in accordance with 29 C.F.R. � 1614.108.4 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
August 11, 2009
__________________
Date
1 Complainant did not check off reprisal as a basis of discrimination
in his complaint form. However, he alleged reprisal in the narrative
portion of his complaint.
2 After reviewing the record, including further explanation on appeal,
we modified the FAD's characterization of complainant's claims.
3 Complainant was a Global health Fellows Program (GHFP) fellow. GHFP is
a cooperative agreement implemented and managed by PHI in partnership
with two universities and an international consulting firm.
4 The agency shall ask complainant to clarify which claims he alleging
he was retaliated against for opposing alleged discrimination.
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0120091503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
9
0120091503