[Redacted], Deon L., 1 Complainant,v.Antony J. Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000848 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deon L.,1 Complainant, v. Antony J. Blinken, Secretary, Department of State, Agency. Appeal No. 2021000848 Agency No. DOS-0237-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 6, 2020, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND In 2015, Complainant, a Library of Congress employee, was appointed the Field Director of the Kenya Overseas Office located in the U.S. Embassy in Nairobi, Kenya. Since 1962, the Library of Congress (hereinafter “Library” or “LOC”) has maintained field offices abroad, to acquire, catalog, preserve, and distribute library and research materials from countries where such materials are unavailable through conventional acquisition methods. There are six Library field offices located around the world, including Kenya. According to LOC, “for safety and security, the Library’s field offices must be located within U.S. Embassy compounds.” The Library funds the security, construction, and maintenance of these field offices embedded in the embassies. As Field Director in Kenya, Complainant supervised twenty-four employees. 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. 2021000848 2 In June 2020, Complainant contacted an Agency (the State Department, not the LOC) EEO counselor regarding claims that the U.S. Ambassador to Kenya was subjecting him to a discriminatory hostile work environment. Informal efforts to resolve Complainant’s concerns were unsuccessful. When contacted by the EEO office, the Ambassador responded by stating that it should cease processing Complainant’s complaint because the 29 C.F.R. Part 1614 EEO complaint process was not available to LOC employees. Nevertheless, on September 10, 2020, Complainant filed a formal EEO complaint against the Agency alleging discrimination based on race (“multi-racial”) and disability (associated with autistic son), as well as reprisal for prior protected EEO activity. In correspondence dated October 5, 2020, the Agency directed the Library to remove Complainant from the Nairobi Embassy. The Agency stated that if the Library failed to do so, it would notify the Government of Kenya that Complainant was no longer a member of the U.S. Mission and cancel his diplomatic passport.2 The next day, the Agency issued a final decision dismissing Complainant’s EEO complaint for failure to state a claim. Citing 29 C.F. 1614.103(d)(3), the Agency reasoned that Complainant is an employee of the LOC, an agency not covered by the 29 C.F.R. Part 1614 federal sector EEO complaint process. Complainant filed the instant appeal. On appeal, Complainant’s attorney contends that the Agency failed to consider whether Complainant is a joint employee of both LOC and the Agency. In support of his belief that the Agency is his joint employer, Complainant contends that his Field Director position is “dependant on the office, diplomatic status, privileges and immunities, as well as Embassy housing.” Further, his work is performed on Agency premises. According to Complainant, the Agency “has complete control over discharging a LOC employee”, as illustrated by the Agency’s “ultimatum” to LOC seeking Complainant’s immediate removal. The Library has filed an amicus curiae brief in support of Complainant’s appeal. While pointedly not addressing the merits of Complainant’s complaint, LOC asserts that it “has an interest in ensuring that its employees can avail themselves of EEO protections when an employee in the Executive Branch violates or allegedly violates the civil protections of Library employees.” By dismissing Complainant’s EEO complaint, LOC believes that the Agency “took an overly restrictive view of its jurisdiction to process [the] complaint and failed to consider Complainant’s joint employment status with the Department of State for EEO purposes.” 2 In response, LOC agreed to “temporarily relocate” Complainant to his home in Uganda, where he would work on “issues unrelated to the Library’s Nairobi Field Office, but expressed its disagreement with the Agency’s conclusions regarding Complainant. Additionally, LOC noted that in June 2020, it had seemingly resolved the Ambassador’s issues with Complainant, over the last two years, by “putting distance” between the two. No new issues had been brought to LOC’s attention since that time. 2021000848 3 While acknowledging that LOC itself is exempt from the EEOC’s jurisdiction, Library argues that its employees are not foreclosed from challenging discriminatory actions by an agency covered by the EEOC. The Library contends that, to conclude otherwise, would leave those LOC employees that are under the control of Executive Branch agencies without any recourse for allegedly discriminatory treatment. The Library requests that the case be remanded to the Agency for a joint employee analysis. Moreover, it believes that such consideration will result in the Agency being considered a joint employer because the Agency had control over Complainant’s office, housing, passports, Kenyan driver’s license, and its revocation of his diplomatic status was “tantamount to removing him from his Library position.” As a result of the Agency’s actions, Complainant could not continue his Field Director duties, including supervision of the staff.3 In response, the Agency argues that it is undisputed that Complainant is an employee of LOC, and therefore the proper forum for Complainant’s case is LOC and not the EEOC. Moreover, it asserts that in Ma v. Dep’t of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) and its progeny the Commission did not determine if such an analysis is “at all applicable where, as here, the complainant is specifically excluded by statute from pursuing his claim at the EEOC.” The Agency contend that absent a waiver of sovereign immunity, there is no need to consider whether it is a joint employer. The Agency argues, in the alternative, that even if the joint employer analysis is conducted the result would show that the Agency simply “serves as a provider of residential and office space, as well as certain services overseas to the LOC” in exchange for compensation by Library. ANALYSIS AND FINDINGS 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 Agency (the State Department) falls under the Commission’s jurisdiction. In contrast, the Part 1614 federal sector EEO process does not apply to employees of LOC.4 See 29 C.F.R. 1614.103(d)(3). This point is not disputed by Complainant or the LOC itself. Rather, the focus here is whether or not, for purposes of the EEO complaint process, the State Department may be considered a joint employer of Complainant. 3 According to LOC, it had to appoint an interim director to the Kenyan Field office to maintain continuity of operations. 4 As noted in LOC’s brief, it is subject to Title VII, but “the remedial scheme for Library employees who challenge Library actions is different than most other federal agencies.” 2021000848 4 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). If such joint employer status is found, then Complainant is entitled to use the EEO process to address his claims of discriminatory Agency actions, as would any other Agency employee. Consequently, we find little merit in the Agency’s assertion that a joint employment analysis is not applicable. The analysis would be used to assess Complainant’s relationship with the Agency (State Department), a department subject to the Part 1614 federal sector EEO process. It is not to consider his relationship with LOC - an entity expressly excluded from Commission jurisdiction - which is undisputedly one of employer/employee. Likewise, in the more common situation, where a private staffing firm contracts with an agency subject to the federal sector EEO process, such staffing firm employees must abide by the private sector process for addressing claims of discrimination. Under some circumstances, however, those individuals may also be considered to be employees of the contracting federal agency, in which case the 29 C.F.R. 1614 process applies. See EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See id. “Coverage Issues,” at Question 2. No one factor is considered to be decisive and we emphasize that it is not necessary to satisfy a majority of the factors. Rather, the analysis is holistic. All the circumstances in the individual’s relationship with the agency should be considered to determine if the agency should be deemed the worker’s joint employer. See Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016); Ma v. Dep’t of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). See also, EEOC Compliance Manual Section 2, “Threshold Issues,” Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000); EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997). In this case, the record contains limited information regarding any of the factors to be considered in determining the joint employment issue. For example, in the Agency’s October 5, 2020 letter it stated: “we have concluded that [Complainant] is unable to carry out the LOC’s mission in Nairobi due to his disruptive behavior and that his continued presence at post is untenable. We are prepared to act independently if necessary.” There are references to Complainant’s participation, or lack thereof, in “Country Team” meetings. The LOC’s October 16, 2020 correspondence references previously raised issues between Complainant and the Ambassador. However, we are unable to glean the level of control the Agency had over Complainant. There is no information regarding Complainant’s day-to-day responsibilities and interactions with, or management by, Agency officials including, but not limited to, the Ambassador. Therefore, the case is remanded to the Agency for a supplemental investigation to gather the information necessary to conduct a proper analysis of its joint employer status. As for the Agency’s contentions regarding the services it provides to Library, or the absence of services received by Complainant, these are more appropriately considered in the context of the joint employment analysis. 2021000848 5 We agree with Complainant and the LOC that the Agency improperly dismissed the formal complaint without considering Complainant’s joint employment status for EEO purposes. CONCLUSION The Agency’s final decision dismissing the instant formal complaint is VACATED and the matter is REMANDED for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to conduct a supplemental investigation on whether it has sufficient control over Complainant to be considered his joint employer for the purpose of utilizing the 29 C.F.R. Part 1614 EEO complaint process. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide him an opportunity to respond, and include his response in the supplemental investigation. Based on the results of the supplemental investigation, the Agency shall issue a new decision accepting the complaint for further processing or procedurally dismissing it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision is issued. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting verifying the corrective action has been implemented, including a copy of the acceptance letter or final decision, as applicable. 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. 2021000848 6 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). 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. 2021000848 7 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 (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 February 9, 2021 Date