[Redacted], Ayesha W., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Nov 10, 2022

Appeal No. 2021004555 (E.E.O.C. Nov. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ayesha W.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2021004555 Agency No. 21-27 DECISION On August 7, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a July 15, 2021 final Agency decision (FAD) dismissing her complaint of 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. BACKGROUND During the period at issue, Complainant served the Agency as an instructor via a direct contract between her and the Agency. On June 7, 2021, Complainant filed an equal employment opportunity (EEO) complaint alleging the Agency discriminated against her based on her sex (female) when effective February 9, 2021, the Agency terminated her contract. Complainant entered into a contract to serve the Agency for one year beginning on November 1, 2020, with two annual renewal options. The contract included the following provisions. Pay was based on completion of tasks.2 Complainant was required to be available to instruct in person during regular hours and frequent non-regular ones, to maintain her appearance, to adhere to Agency conduct standards, and not to conduct personal affairs or recreational activities during duty 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 This amounted to full-time work. 2021004555 2 hours unless on a scheduled break. The Agency provided Complainant her facilities, supplies and equipment to do her job, and personal items. In the event of an emergency, the Agency could change the services Complainant did, and their time and place. The Agency could terminate the contract for cause. This included failure to perform services satisfactorily. The Agency dismissed Complainant’s complaint for failure to state a claim because under common law she was an independent contractor, not an employee. The instant appeal followed. On appeal, Complainant argues that the Agency was her common law employer because of the amount of control it had over her work. In reply, the Agency argues the opposite. 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) states 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 applies 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), EEOC Compliance Manual Section 2, “Threshold Issues,” Section 2-III(A)(1), OLC Control No. EEOC-CVG-2000-2 (May 12, 2000) (Compliance Manual). 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. 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. 2021004555 3 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. 14. The employer can discharge the worker. 15. The worker and the employer believe 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. See Id. (same as the last citation). The Agency found that Complainant, a subject matter expert, had sole control over the means and manner of her performance as an instructor, and it merely inspected the quality of her work. In reply to Complainant’s appeal, the Agency argues that its control over Complainant’s work and performance was limited. In support of this, the Agency argues that Complainant never asserted an Agency official supervised her work or performance. But Complainant wrote in her complaint that she was told by the Agency Chief in her area that he wanted her to instruct on a particular part of the course program, but then switched her to a different track by assigning her to learn about a different part of the course by observation and participation, then returned her a month later so she could “certify” on the first course portion, then informed her she failed to certify on her instructor training. The EEO counselor wrote that the Agency Chief stated all new contract instructors receive several weeks of training by shadowing a more experienced (contract) instructor to tailor their expertise to the Agency’s program. 2021004555 4 He related to the EEO counselor that Complainant worked with three trainers over at least six weeks, and each told him she was unable to perform in the manner expected of an instructor. The Agency Chief said he advised Complainant on her issues and moved her to a different part of the course program to assess if her skills could be used there, but the trainers and mentors who worked with her advised she was unable to perform there too. Contract language strongly suggests that the course program Complainant instructed on already had curriculum - meaning she did not have the power to create one on her own. We find that factors 1 and 6 point to the Agency being Complainant’s employer. The Agency found that Complainant working on Agency premises using Agency equipment and supplies was a neutral control factor because this was necessitated by the work being classified. We disagree with this legal conclusion. This still made Complainant’s work more accessible to control. Factors 3 and 4 point to the Agency being Complainant’s employer. On appeal, the Agency argues that Complainant worked for the Agency for about three months, a short duration, and this points to her being an independent contractor. We disagree. Complainant’s job was not a short-term project. Rather, her service was expected to be ongoing - full-time instruction for one year, with an option for two annual renewals. It was cut short because the Agency terminated the contract. Factor 5 points to the Agency being Complainant’s employer. By contract, Complainant’s daily and hourly schedule and availability were required to conform to listed course schedules, which were during standard and nonstandard work hours. The Agency Chief had the power to direct Complainant to different assignments and did so. Factor 7 points to the Agency being Complainant’s employer. Complainant had no role in hiring or paying assistants, the Agency is a government employer, and it had the power to discharge Complainant, which it did for failure to perform services satisfactorily. Factors 9, 11 and 14 point to the Agency being Complainant’s employer. We agree with the Agency that other factors point to Complainant being an independent contractor - her job required a high degree of skill, she was required to submit invoices to receive payment, training employees is not part of the Agency’s mission, and Complainant received no benefits and was not considered an employee for tax purposes. These are factors 8, 10, 12 and 13. There is insufficient information in the record to determine whether Complainant believed she was creating an employee relationship with the Agency. On balance, we find that the Agency had sufficient control over Complainant’s work and performance to be her common law employer, and so find. The FAD is REVERSED. 2021004555 5 ORDER (E0618) The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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 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. 2021004555 6 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). 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). 2021004555 7 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 November 10, 2022 Date