[Redacted], Freddie K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2022001320 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddie K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022001320 Agency No. 200H-0541-2021104995 DECISION On January 12, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a January 7, 2022 final Agency decision (FAD) dismissing his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant participated in the Case Western Reserve University Hospitals (“University Hospitals”) Psychiatry Residency Program with rotations to the Cleveland Veterans Affairs Medical Center Psychiatry Service in Cleveland, Ohio, as a Resident Physician on a “without compensation” (WOC) Agency appointment. On November 30, 2021, Complainant filed an equal employment opportunity (EEO) complaint that the Agency discriminated against him based on disability (record of and/or regarded as having a chemical dependency), reprisal for prior protected EEO activity (opposition and participation), race (White), national origin (Hungarian), and sex (male). The Agency defined Complainant’s claim as concerning his being dismissed from his residency training program on April 23, 2021 On appeal, Complainant writes that the Agency mis-defined his complaint 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. 2022001320 2 because he alleged the Agency also removed him from practicing medicine as a resident at the VAMC before terminating his WOC appointment as a Resident Physician on April 23, 2021. We agree and find Complainant’s complaint is properly defined as alleging discrimination and unlawful retaliation when the Agency removed him from practicing medicine at the Cleveland VAMC on or about February 26, 2021 - March 5, 2021, and terminated his WOC appointment as a Resident Physician on April 23, 2021. The Agency dismissed Complainant’s complaint for failure to state a claim, reasoning that as a WOC appointee he was not an Agency employee, and it did not have enough control over his employment with University Hospitals to be his common law joint employer. Specifically, the Agency found University Hospitals paid Complainant’s salary and benefits via a reimbursement agreement with the Agency for trainees, and he was terminated by the University Hospitals Psychiatry Director, not the Agency, and the Agency ended his WOC appointment since he was no longer participating in an accredited program. The Agency conceded that Complainant was supervised by Agency faculty physicians at the Cleveland VAMC. The instant appeal followed. On appeal, Complainant asserts that on April 23, 2021, University Hospitals told him that he was being terminated because he was prohibited from working at the Agency. He argues that the Agency did not gather enough information to determine whether under common law it had enough control over his employment to be his common law joint employer. He requests that the Commission remand the matter back to the Agency for a supplemental investigation. In response, the Agency requests that we affirm its FAD dismissing the complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.103(a) requires that complaints of employment discrimination be processed per Part 1614 of EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) states that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. This Commission has found that a volunteer at a federal agency may be considered an “employee” for the purpose of utilizing the 29 C.F.R. Part 1614 EEO complaint process if, as a result of their volunteer service, the aggrieved individual: (1) receives benefits such as a pension, group life insurance, workers’ compensation that constitute significant remuneration rather than merely the “inconsequential incidents of an otherwise gratuitous relationship, even if they are provided by a third party; or (2) volunteer work is required for regular employment or regularly leads to regular employment with the same entity the Agency. EEOC Compliance Manuel Section 2-III.c, “Threshold Issues,” OLC Control No. EEOC-CVG-2000-2 (May 12, 2000). Here, the Agency found that there was no connection between Complainant’s WOC appointment and regular Agency employment. In this regard, the record shows that the Agency Psychiatry Education Site Director, a physician, wrote that completion of rotations to the Cleveland VAMC by a WOC appointee is not expected to lead to employment. 2022001320 3 The record also contains the Agency’s written Standard Operating Procedure for Administration of Disbursement Agreements under VHA Directive 1400.05 - the mechanism the Agency uses to reimburse sponsoring affiliate institutions (like University Hospitals) for the cost of providing resident activity to the Agency. The record does not have the specific agreement between University Hospitals and the Agency. But the Standard Operating Procedure directive reflects that reimbursable resident costs include their salaries and fringe benefits, including health, life, disability, unemployment and workers’ compensation insurance, annual leave, a retirement plan with the affiliate, and the affiliate’s contribution to the resident’s Federal Insurance Contributions Act (FICA) payroll tax for Social Security and Medicare. The Agency separately provides malpractice insurance coverage to residents appointed to it. Complaint file, Bates Nos. 104 - 108. Complainant stated he got paid for his work as a resident physician. Given the types of resident activity costs anticipated in VHA Directive 1400.05 that can be reimbursed to an affiliate, like salary and benefits like unemployment insurance, a retirement plan, and the affiliate’s portion of payroll taxes, and the Agency providing malpractice insurance, we find Complainant is not a volunteer.2 See Complainant v. Veterans Affairs, EEOC Appeal No. 0120133242 (Feb. 6, 2014) (where the complainant served the agency as a social work student intern for 2012 - 2013 with a stipend of $6,3153 which is “significant remuneration” and the intern program was part of the process to obtain certification as a licensed social worker, he was an employee of the agency, not a volunteer). Having determined that Complainant is not a volunteer, the question to be determined is whether or not the Agency can be considered Complainant’s joint employer in concert with University Hospitals for purpose of using the 29 C.F.R. Part 1614 EEO complaint process. In Serita B. v. Department 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)4; 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 Complainant was appointed to the Agency under 38 U.S.C. § 7406. Complaint file, Bates Nos. 3, 100. As argued by Complainant on appeal, his service at the Agency as a resident is deemed creditable federal service. 38 U.S.C. § 7406(c)(3)(B). 3 We take administrative notice that University Hospitals advertise stipends for psychiatry residents as of July 1, 2021, for PGY I of $61,955, and PGY II of $64,425, plus benefits. https://www.uhhospitals.org/medical-education/psychiatry-medical-education/psychiatry- residency/why-choose-us. 4 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 2022001320 4 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 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, among other things, 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. 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). 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. Complainants v. Dep’t of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 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). 2022001320 5 In assessing the right to control, EEOC does not consider any one factor decisive and emphasizes 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. Enforcement Guidance, “Coverage Issues,” at Qs. 1 and 2. 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 the instant matter, the record is not sufficiently developed to make a determination on whether the Agency is a joint employer for the purpose of using the 29 C.F.R. Part 1614 complaint process. Complainant practiced as a Resident Physician on rotation to the Cleveland VAMC, and some of his writings suggest he did so sporadically, but this is not clear. On remand, the Agency must supplement the record with Complainant’s daily or weekly rotation schedule at Cleveland VAMC, including hours. To the extent Complainant and Case Western Reserve University Hospitals Psychiatry Residency Program cooperate, the Agency must supplement the record with information on whether Complainant also rotated as a resident to non-Agency affiliates (like hospitals and doctor’s offices) and if so his schedules there, and with documentation confirming Complainant was terminated from Case Western Reserve University Hospitals Psychiatry Residency Program and when. The Agency concedes that Complainant was supervised by Agency faculty physicians while practicing at the Cleveland VAMC, but the record lacks detail on this. The Agency must supplement the record with statements by faculty physicians in a position to know concerning who gave Complainant his daily assignments, e.g., paperwork, which patients to see, what tasks to perform when he saw patients, etc., what Agency faculty supervision of Complainant’s performance looked like task to task and day to day, and whether Complainant was expected to give notice and/or request permission from the Agency before taking leave provided by University Hospitals. Complainant alleged he was removed from providing services at the Agency. Therefore, the circumstances surrounding his removal are significant to the analysis of whether the Agency was his joint employer for EEO purposes. While the record contains the Standard Operating Procedure for Administration of Disbursement Agreements under VHA Directive 1400.05, it must be supplemented with the specific agreement between University Hospitals and the Agency. The record has some emails between an EEO Specialist and Agency officials on Complainant’s services and termination, but the information in them is limited and does not have detailed information on the events surrounding his removal. For example, the Agency Cleveland VAMC Designated Education Official (a physician) in an email to the EEO Specialist dated December 21, 2021 wrote “[Complainant] was not an employee of the [Agency]…. When Complainant was terminated from UH [University Hospitals], he no longer had status in an accredited training program and thus his VA appointment ended.” Complaint File, Bates Nos. 153-154. This email 2022001320 6 did not specifically address whether Agency officials requested that University Hospitals take some type of action on Complainant’s service at the VAMC prior to his removal - Complainant states that on March 5, 2021, the VAMC Designated Education Official emailed him that he would be removed from the pool of residents assigned to the Agency based on “discussion with [Agency] faculty and leadership and concurrence from the UH Program Director.” Complaint File, Bates No. 179. Complainant also asserted that on April 23, 2021, he received notice from University Hospitals that his privileges to practice at the Agency were revoked. Id. The record must be supplemented with statements by relevant Agency officials, including the Cleveland VAMC Designated Education Official and, to the extent they cooperate, by University Hospitals officials addressing in detail the circumstances surrounding cutting off Complainant’s services at the VAMC and subsequent removal from the VAMC, and removal from the Case Western Reserve University Hospitals Psychiatry Residency Program, and documentation related to the above (such as emails/correspondence between the Agency and Complainant and University Hospitals, and between University Hospitals and Complainant). Accordingly, we VACATE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for a supplemental investigation as set forth in the Order below. ORDER Within ninety (90) calendar days from the date this decision is issued, the Agency is ordered to take the following actions: 1. Redefine Complainant’s EEO complaint, as identified above. 2. Supplement the record with evidence consistent with this decision relevant to determining if the Agency is a joint employer for EEO complaint purposes. After doing so, provide Complainant a copy of the supplemented record with an opportunity to respond, and include his response in the record. 3. The Agency shall either issue a new final decision dismissing the complaint, with appropriate analysis of the relevant facts with appeal rights to the Commission, or a letter accepting Complainant’s complaint for investigation. 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 2022001320 7 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 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, 2022001320 8 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 (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. 2022001320 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 April 27, 2022 Date