[Redacted], Diedre A., 1 Complainant,v.Barbara M. Barrett, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2020004556 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diedre A.,1 Complainant, v. Barbara M. Barrett, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020004556 Agency No. 8L1M2000719 DECISION On August 13, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 17, 2020, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Weather Forecaster III at the Nellis Air Force Base in Las Vegas, Nevada. On June 1, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her disability (post-traumatic stress disorder) when from April 29, 2019 onward, it did not provide her an effective reasonable accommodation allowing her service animal (dog) to accompany her at all times throughout her work locations, including travel to and from them. The Agency dismissed the complaint for failure to state a claim. It found that the Agency did not exert sufficient control over Complainant’s employment to be her common law employer. The instant appeal followed. 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. 2020004556 2 ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim on the basis that she was not its employee. 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 therewith. In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 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)2; 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. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep’t of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep’t of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission’s long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term “joint employer” refers to two or more employers that each exercises 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., 2 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 2020004556 3 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. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker’s status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep’t of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). 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 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; 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. Enforcement Guidance, “Coverage Issues,” at Qs. 1 and 2. 2020004556 4 In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual’s work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2. On appeal, Complainant argues via counsel that the Agency did a barebones inquiry into whether it had sufficient control over her employment to be her common law employer and noted no inquiry was made of her supervisors. She argues that she was jointly employed by the staffing firm and the Agency. As she previously responded to a questionnaire from the EEO counselor designed to elicit information on Agency control, on appeal Complainant argues that she works on Agency premises using Agency equipment, the Agency transports3 her to and from her duty stations, sets the schedule for when work is done and how many people on each shift, determines what products are needed, their requirements and format, and to whom and when they go out, has the right to provide feedback on her performance, and the right to deny leave to all staffing firm employees as circumstances require (e.g., Covid-19). On appeal, Complainant adds that both her staffing firm and the Agency assign her tasks, and she has been serving the Agency since 2012. In response to the same questionnaire, an Agency official stated that the staffing firm sets its staffs’ individual schedules, assigns their work, does their evaluations, acts on their leave requests, provides their training, and to the best of its knowledge supervises and manages them. The record suggests that the questionnaire was completed by an Agency Contracting Officer. It is uncontested that Complainant’s compensation and benefits were provided by her staffing firm. In reply to Complainant’s appeal, Agency counsel reiterates the above, and adds that the staffing firm hired Complainant. The Agency now further argues that Complainant’s appeal should be dismissed under 29 C.F.R. § 1614.409 because on May 1, 2020, she filed a civil action 2:20-cv-788 in the United States District Court for the District of Nevada on the same matter as her EEO complaint. The record reflects that the Complainant named both her staffing firm and the Agency as the defendants in her civil action complaint. In her sur-reply, Complainant argues that service of the summons on the Agency was never perfected, and she amended her civil action complaint on August 24, 2020, to only list the staffing firm as a defendant so as to pursue the instant appeal. Civil Action We take administrative notice of the following. On August 5, 2020, the Deputy Clerk of the District Court notified Complainant that the Court did not receive proof of service of the summons for the staffing firm and the Agency regarding her civil action, and her civil action would be dismissed without prejudice unless proof of service was filed by September 4, 2020. 3 Complainant alleges that because of the classified nature of her work, after she parks her personal vehicle in a parking lot, she is transported in Agency communal transport to her work locations, and the Agency has a blanket policy prohibiting service animals from riding on this transport. 2020004556 5 On August 5, 2020, proof of service was filed as to the staffing firm. It was never filed as to the Agency. As of January 4, 2021, the civil action is still pending. There is no indication that service of the summons on the Agency with intent to include it as a defendant in the civil action was otherwise made on the Agency - it has not entered its appearance therein. Given the above, we find that the as to the Agency, Complainant’s civil action was effectively dismissed without prejudice. Accordingly, we decline to dismiss Complainant’s appeal. Joint Employment We agree with Complainant’s argument on appeal that the Agency did a barebones inquiry into whether it had sufficient control over her employment to be her common law joint employer, and agree with her argument in her sur-reply that the Agency’s inquiry regarding joint employment was inadequate. On critical control factors in this case, the evidence is inadequate. While Complainant contends that both the Agency and the staffing firm assigned her work, she provides no examples of what she means by this, e.g., does Agency staff directly assign her work or instruct her staffing firm supervisor to assign work specifically to her and if so examples thereof. Examples are needed to illustrate what Complainant means by the Agency determining what products are needed, their requirements and format, whom and when they go out, how this occurs in practice day to day, and whether Agency staff review Complainant’s work product for quality, completion, and/or timeliness, give her feedback thereon and if so examples thereof. Regarding the alleged denial of effective reasonable accommodation, more information is needed on the Agency’s role. In conducting the expanded inquiry on control, the Agency shall solicit information from the individual Complainant identifies in her appellate declaration as her immediate frontline staffing firm supervisor and the individual she identifies therein as her Agency supervisor - the one who supervises the weather office, and if applicable their successors. The FAD dismissing the complaint is VACATED. ORDER In accordance with the guidance in this decision, the Agency shall gather more information on whether it is Complainant’s common law joint employer. Thereafter, the Agency shall accept Complainant’s complaint or dismiss it based on its determination on joint employment with appeal rights to the EEOC. The Agency shall complete this within 75 calendar days of the date of this decision. The Agency shall provide a copy of the letter accepting Complainant’s complaint or a FAD dismissing it as instructed directly below. 2020004556 6 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. 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 2020004556 7 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, 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 (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. 2020004556 8 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 January 6, 2021 Date