[Redacted], Dovie W., 1 Complainant,v.Anthony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2020003097 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dovie W.,1 Complainant, v. Anthony Blinken, Secretary, Department of State, Agency. Appeal No. 2020003097 Hearing No. 570-2019-00132X Agency No. DOS-0231-18 DECISION On March 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 13, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission REMANDS that part the of the Agency’s final order dismissing Claim 3 for failure to state a claim. ISSUES PRESENTED The issue presented is whether the Administrative Judge (AJ) properly dismissed Complainant’s equal employment opportunity (EEO) complaint for failure to state a claim on the basis that Complainant did not have an employment relationship with the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Unit Manager. Complainant was hired as a contractor with a privately-owned company known as Serco, Inc. 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. 2020003097 2 Subsequently, FCi Federal2, also a private company, took over the contract from Serco, Inc. As a contractor, Complainant worked at the Agency's Kentucky Consular Center in Williamsburg, Kentucky. On March 30, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On May 11, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected EEO activity when: 1. on September 24, 2014, Complainant was terminated from her position; 2. as recently as September 24, 2014, Complainant was subjected to a hostile work environment characterized by, but not limited to, inappropriate comments and jokes; and, 3. on or about February 15, 2018, her request for reconsideration regarding the September 2014 termination from her position as a contract employee was denied. On June 25, 2018, the Agency dismissed claims 1 and 2 for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.105(a)(1). Claim 3 was accepted for investigation on the basis of reprisal alone. After its investigation into claim 3, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On December 12, 2019, the AJ notified the parties of her intent to issue a decision without a hearing. The AJ stated that, in reviewing the record, it appeared that Complainant had failed to show that an employment relationship with the Agency existed which would provide her with standing to utilize the federal EEO process. The AJ invited the parties to respond. On December 27, 2019, the Agency responded and requested that the AJ enter judgment in favor of the Agency and sustain the procedural dismissals of claims 1 and 2. The Agency asserted that dismissal of the entire complaint was warranted, as Complainant was neither an employee nor an applicant for employment with the Agency during the relevant time. The Agency conducted a brief analysis of the Ma factors in determining that Complainant was not an employee or joint employee of the Agency, and therefore had no standing to file a claim. Ma v. Dep’t of Health and Human Serv., EEOC Appeal No. 01962390 (June 1, 1998) (citing Nationwide Mutual Insurance Co. et al v. Darden, 503 U.S. 318, 323-24 (1992)). 2 FCi Federal was later sold and became PAE. Complainant was not employed with the company during that transition. 2020003097 3 On the same day, Complainant also responded to the AJ’s notice and argued that the Agency was her joint employer along with FCi Federal. According to Complainant, FCi Federal managed its employees with heavy oversight by Agency personnel. For example, Complainant asserted that, while FCi selected the management team, it did so by utilizing Agency management guidelines and obtaining the Agency’s final approval. In 2014, stated Complainant, she was approved by the Agency to become a Unit Manager. The position required access to the Agency’s building, which was gained by obtaining a security clearance from the Agency. Her access to the facility could be unilaterally revoked by the Agency, and effectively end any FCi Federal employee’s position, argued Complainant. Moreover, Complainant was provided with an Agency email address, giving outsiders the perception that she was an Agency employee. Lastly, Complainant noted that all terminations required an Agency personnel’s signature. When she was terminated, an administrative assistant for the contractor and an Agency manager signed off on the paperwork. Complainant asserted that, in light of all these factors, the Agency should be considered her joint employer for EEO purposes. On January 17, 2020, the AJ issued her decision. The AJ noted that Complainant failed to respond to her December 12, 2019, notice of intent to issue a decision without a hearing. response.3 In reviewing the record in the light most favorable to Complainant, the AJ determined that there was no evidence of an employment relationship between Complainant and the Agency. Additionally, noting that there was no challenge to the Agency’s prior procedural dismissals of claims 1 and 2, the AJ upheld the dismissals. Accordingly, the AJ concluded that since the Commission did not have jurisdiction to review the matter, dismissal was appropriate pursuant to 29 C.F.R. 1614.107 (a)(1); §1614.103. The Agency issued its final order adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant asserts that AJ inappropriately dismissed her complaint. Despite the AJ’s statement to the contrary, Complainant contends she timely responded to the AJ’s notice of intent to issue a decision without a hearing (Notice). In support, Complainant has provided copies of her email correspondence to the AJ, indicating that she did submit a response on December 27, 2019. Complainant reiterates her assertion that multiple factors support a finding that the Agency was her joint employer and her case was improperly dismissed. She did not address the dismissals of claims 1 and 2. In response, the Agency argues that the AJ’s dismissal was proper because Complainant failed to establish that the Agency was her joint employer. The Agency further argues that the matter at issue in claim 3 concerns her employment with FCi Federal. 3 It appears that the AJ never received Complainant’s December 27, 2019 submission. However, both the Agency and Complainant have provided copies of the document on appeal. 2020003097 4 STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110 at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision to procedurally dismiss claims 1 to 2. Accordingly, we will not address those claims on appeal. Failure to State a Claim - Claim 3 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 falls under the Commission’s jurisdiction. This point is not disputed by Complainant or the Agency itself. The focus here is whether, for purposes of the EEO complaint process, the Agency may be considered Complainant’s joint employer. 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 her claims of discriminatory Agency actions, as would any other Agency employee. The Agency stated that Complainant was an employee of FCi and repeatedly availed herself of the private-sector EEO process. It argued that this clearly demonstrated that Complainant never was nor ever considered herself to be an Agency employee. 2020003097 5 We acknowledge that 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). Therefore, Complainant’s actions against FCi does not preclude her from pursuing an EEO complaint against the Agency. 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. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 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 the Agency’s December 27, 2019 response, it reasoned that, even though the Agency has some control, the contracting companies always exhibited the majority control over Complainant’s employment, and thus no joint-employer status could exist. However, the Commission has previously determined that control may be partial, and without even a majority of factors shown, for there to be sufficient control over the individual to qualify as an employer. See Kareem v. Dep’t of State, EEOC Request No. 5020110069 (Apr. 26, 2012) citing Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (finding, despite contractual language identifying the complainant as a contractor and the agency's failure to provide wages, benefits, and leave, that the agency exercised sufficient control over the position because it retained approval over the selection process and supervisory authority over the position); Lonergan v. Dep't of Veterans Affairs, EEOC Request No. 05970406 (July 10, 2000) (finding that the agency exercised sufficient control over the position because the complainant worked designated hours at an agency facility for 14 months, the complainant's work fell within the parameters of the agency's regular business, and the agency assigned the complainant work and controlled the manner of the work). 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, all aspects of 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. 2020003097 6 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. In this case, the record contains limited information regarding the numerous factors to be considered in determining Complainant’s employment status. For example, there is no information regarding Complainant’s day-to-day responsibilities and interactions with, or management by, Agency officials. The record contains conflicting statements as to who managed Complainant’s work. Based on the instant record, we are unable to glean the level of control held by the Agency. Consequently, due to the inadequacy of the record, and in consideration of the fact that AJ did not review Complainant’s December 27, 2019 response, the case is remanded to the AJ to gather the information necessary to conduct a proper analysis of Complainant’s employment status. CONCLUSION As noted above, claims 1 and 2 were not challenged on appeal. Therefore, we do not act on that portion of the Agency’s final decision. Regarding the only issue on appeal, claim 3, we VACATE the Agency’s final action and the underlying decision of the AJ, and remand Claim 3 for further processing consistent with this decision and the Order of the Commission, below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC’s Washington Field Office a renewed request for a hearing on this complaint, the complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. The EEOC AJ shall conduct discovery regarding whether the Agency had sufficient control over Complainant to be considered a joint employer for purposes of the 29 C.F.R. Part 1614 EEO complaint process. Following development of the record, and consideration of Complainant’s December 27, 2019 submission, the AJ shall determine whether Complainant has standing and proceed accordingly. The Administrative Judge shall issue a decision in accordance with 29 C.F.R. §1614.110. 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). 2020003097 7 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). 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 2020003097 8 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 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. 2020003097 9 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 September 9, 2021 Date