[Redacted], Adena J., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2021003476 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adena J.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021003476 Agency No. FBI-2021-00048 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 26, 2021, dismissing a formal complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant was an applicant with Salient CRGT (“Salient”), which contracted with the Agency to supply various services. On January 21, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female) and age, as well as in retaliation for complaints against the Agency involving the Prince George’s County Court involving child custody/child support matters and the instant EEO complaint. The Agency framed Complainant’s claims as follows: 1. On January 7, 2021, Complainant received an offer for the position of Senior Technical Writer, which was rescinded on January 12, 2021. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and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 2021003476 2. On January 27, 2021, Complainant was retaliated against for filing the instant EEO complaint when Salient reopened her background investigation to create an adverse action regarding her security clearance. The Agency dismissed claim (1) for failure to state a claim. The Agency reasoned that Complainant was neither an employee nor former FBI employee. In addition, the Agency reasoned that there is “no indication that [Complainant has] ever been an applicant for FBI employment.” Instead, according to the Agency, Complainant was an applicant of Salient and not the Agency. Based on the foregoing, the Agency found that Complainant did not have standing to bring the instant claim. The Agency found that even assuming that Complainant did have standing to bring the instant claim, claim (1) is still properly dismissed for failure to state a claim because Complainant has not been rendered aggrieved. Specifically, the Agency stated “even assuming FBI officials provided input to Salient that resulted in the rescission of [her] job offer, that action fails to state a claim of discrimination.” Regarding the basis of reprisal with respect to claim (1), the Agency found that Complainant was not alleging complaints of employment discrimination, but complaints made as a private citizen and thus did not constitute protected EEO activity. The Agency treated claim (2) as an amendment to the instant formal complaint. The Agency found claim (2) was like or related to the instant complaint but dismissed claim (2) for failure to state a claim again reasoning that Complainant was not an employee, former employee, or applicant for employment with the Agency. Thus, the Agency found, like claim (1), that Complainant did not have standing to bring this claim. The Agency further found that even assuming Complainant did have standing to bring claim (2), it fails to state a claim because the alleged action would not have reasonably deterred one from participating in the EEO process. The instant appeal followed. On appeal, Complainant asserts that the Agency was a joint employer with Salient for EEO purposes. Complainant asserts that “the Agency’s power to remove Complainant was tantamount to removal from her position of employment with Salient…” Complainant also submits some documentation regarding the position at issue. ANALYSIS AND FINDINGS Joint Employer Status 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. The regulation goes on to state that within the covered departments, agencies, and units, Part 1614 applies to all employees and applicants for employment. See 29 § 1614.103(c). 3 2021003476 In Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its long-standing position on “joint employers” and noted it is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, “Threshold Issues,” Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual), EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), “Coverage Issues,” Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. The term “joint employer” refers to two or more employers that each exercise sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2- III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, “Coverage Issues,” at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) (“Entities are joint employers if they ‘share or co-determine those matters governing essential terms and conditions of employment”’) (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required. Rather, the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and 4 2021003476 conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, “Coverage Issues,” at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer). In assessing the right to control, EEOC does not consider any one factor to be decisive and emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic. Claim (1) The record is not sufficiently developed to make a reasoned determination as to whether the Agency is a joint employer for the purpose of using the 29 C.F.R. Part 1614 EEO complaint process. Specifically, the record is devoid of evidence that the Agency performed any inquiry/analysis on the position at issue and the Agency’s possible joint employer status for EEO purposes. The complaint file does not contain a copy of the contract between the Agency and Salient, a position description for the position at issue, or any affidavits or documentation regarding the selection/application process.2 We acknowledge that Complainant, on appeal, submits some documentation regarding the position at issue. Complainant submits a letter dated January 7, 2021, from Salient extending an employment offer for the position of Senior Technical Writer. The letter sets forth that her employment is contingent upon various requirements including “customer approval from FBI.” Complainant also submits, as part of her appeal, a letter from Salient dated January 12, 2021, rescinding its January 7, 2021 employment offer. Finally, Complainant submits a copy of an email from an official with Salient. Therein, the Salient official asserts that it engaged in a review of the circumstances that led to the rescission of Complainant’s job offer. The email from Salient states, in pertinent part, “[Complainant was] issued an offer contingent upon approval of [Visitor Access Request] and FBI Customer Approval. On January 12, 2021, the hiring manager for the position notified [Salient] that [Complainant] had not been approved by the FBI Customer, which was one of the contingencies in [her] offer letter.” Based on the foregoing and the record not being adequately developed, the Agency shall conduct an inquiry regarding its possible joint employer status for the position at issue by considering the factors discussed above. The Agency shall supplement the record with relevant documentation, as set forth in the Order below, including the documentation already submitted by Complainant, as referenced above. 2 We note that, in this case, control over hiring is an especially significant factor in making a determination on joint employment. 5 2021003476 Finally, assuming arguendo that the Agency is a joint employer for EEO purposes, we find that Complainant set forth an actionable claim in claim (1) by alleging that her offer was rescinded based upon instruction from the Agency due to her race, sex or age. Claim (2) As set forth in our discussion of claim (1), the record is not fully developed to make a determination regarding the Agency’s possible joint employer status and thus we also remand this issue for a supplemental investigation, as set forth in the Order below. Assuming that the Agency is a joint employer for EEO purposes, we find that Complainant has set forth a sufficient claim with respect to the basis of reprisal. Regarding claim (2), Complainant is alleging that, at the Agency’s instruction and due to her initial filing the instant EEO complaint, Salient opened a background investigation (after rescinding her job offer) in order for Complainant to have an adverse action on her security clearance. While the Commission will not review the substance of security clearance decisions, it has authority to review an Agency’s decision to initiate review of a Complainant’s security clearance status, as this decision is not the result of any substantive clearance decision-making process. Chatlin v. Dep’t of the Navy, EEOC Request No. 05900188 (June 1, 1990); Anderson v. Dep’t of the Navy, EEOC Appeal No. 0120092413 (Oct. 16, 2009). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998; at 8-15; see also Carroll. We have found that initiating a security clearance investigation to allegedly retaliate against an individual would reasonably likely deter protected activity. See Complainant v. Dep’t of Energy, EEOC Appeal No. 0120141119 (July 9, 2014), req. to recons. den., EEOC Request No. 0520140497 (April 8, 2016). Basis of Reprisal - Court Matters To the extent Complainant is alleging, in claim (1), that the Agency retaliated against her based on prior complaints that she submitted to the FBI regarding child custody/child support matters involving the courts in Prince George’s County, Maryland, we concur with the Agency that this matter does not constitute prior protected EEO activity. The EEO Counselor’s Report provides, in pertinent part, that Complainant was in contact with various named Agency officials “regarding her claims the Prince George’s Family Court harassed her and her family. [Complainant] stated in 2012, she requested and received information regarding her FBI complaint against Prince George’s Family Court via a Freedom of Information Act (FOIA) request, which she stated revealed [a named Agency official] advised that there was no federal 6 2021003476 nexus for [Complainant’s] complaint and never opened an investigation. [Complainant] stated in 2014, she contacted the Office of Inspector General (OIG) regarding her complaint against Prince George’s Family Court and misconduct at the Agency’s Baltimore [Field Office] for not investigating her complaint of concealment of financial crime and the State courts conspiring against federal rights.” We find that the foregoing does not constitute protected EEO activity. Instead, this activity constitutes non-EEO complaints filed by Complainant in her capacity as a private citizen. However, to the extent Complainant is alleging that the Agency retaliated against Complainant with respect to claim (2) based on initiating the instant EEO complaint, which was filed before she alleged her background investigation was reopened, we find that this constitutes protected EEO activity. CONCLUSION We AFFIRM the Agency’s dismissal of the basis of reprisal to the extent Complainant is alleging retaliation for filing non-EEO complaints with the Agency in her capacity as a private citizen. However, we VACATE the Agency’s final decision dismissing the remainder of the complaint and we REMAND this matter to the Agency for a supplemental investigation as set forth in the ORDER below. ORDER Within forty-five (45) calendar days of the date this decision is issued, the Agency shall: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision and relevant in assessing whether the Agency is a joint employer for EEO purposes. The evidentiary record shall include, but is not limited to the following: the documentation Complainant previously submitted on this issue as referenced in this decision, the contract between Salient and the Agency, a position description for the position at issue, and affidavits from relevant Salient officials, Complainant, and relevant Agency officials pertaining to the circumstances surrounding the rescission of Complainant’s job offer and the subsequent reopening of her background investigation. A copy of the completed investigation shall be provided to Complainant. 2. Thereafter, the Agency shall either issue a new final decision dismissing the complaint, with an appropriate analysis of the relevant facts and with appeal rights to the Commission, or a letter accepting Complainant’s complaint for investigation. 3. A copy of the supplemental investigation and final decision or letter of acceptance shall be provided to the Compliance Officer as set forth below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered 7 2021003476 corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). 8 2021003476 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) 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 (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 9 2021003476 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 October 18, 2021 Date