[Redacted], Georgia Z., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2021000668 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgia Z.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2021000668 Agency No. ARBRAGG20SEP02895 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated October 28, 2020, dismissing her complaint of unlawful 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked for Hyperion Biotechnology Incorporated (hereinafter “Hyperion”), which contracted with the Agency to provide general administrative and clerical support. Specifically, Complainant was assigned as an Administrative Assistant at the Agency’s Community Service Program, Child Advocacy Program in Fort Bragg, North Carolina. Believing that she was subjected to a hostile work environment, culminating in her termination on August 3, 2020, Complainant contacted an EEO Counselor on September 14, 2020. Informal efforts to resolve Complainant’s concerns were unsuccessful. On October 19, 2020, Complainant filed a formal complaint based on reprisal.2 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 The Agency identified Complainant’s prior protected EEO activity as “previous request for non- title seven basis assistance”. 2021000668 2 The Agency issued the instant final decision on October 28, 2020, dismissing the formal complaint for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). The Agency found that Complainant was not an Agency employee and therefore lacked standing to use the federal EEO process. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Joint Employer Status 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. The regulation goes on to state that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. See EEOC Regulation 29 C.F.R. § 1614.103(c). 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)3; 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 exercise 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 3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 2021000668 3 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. 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 2021000668 4 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. 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 case, the Agency’s sparse decision does not include relevant facts, any reference to the factors to be considered, or analysis. Instead, the Agency simply makes the following conclusion: “I have reviewed all the information in the file and have decided to dismiss the complaint in its entirety for . . . failure to state a claim. You fail to state a claim under 29 C.F.R. 1614.103(c), as you are not an Agency employee or applicant for employment with the Army.” It is the burden of the Agency to have evidence or proof in support of its final decision. See Marshall v. Dep’t of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). It is clear that the Agency has not even touched on any supportive evidence in its decision. In response to Complainant’s appeal, the Agency submits a fifteen-page brief wherein, for the first time, it describes the substance of the complaint in detail, emphasizing that the alleged harasser was a Hyperion employee, as well as making reference to prior Commission cases and the analysis needed to assess an individual’s employment status (i.e. an independent contractor or an Agency employee). Additionally, the Agency mentions an assessment conducted by an Agency attorney prior to issuance of the decision. In quoting from the Agency attorney, however, the Agency’s focus remains exclusively on the conclusion - that Complainant is not an employee. Yet again, the Agency neglects to describe either the factors considered or the analysis conducted by the attorney’s review. In contrast, Complainant addresses some particular factors. For example, she argues that the Agency attorney failed to consider the length of time, over thirteen years, she has for the Agency’s Family Advocacy Program. Further, she contends that she has represented the Agency on many occasions and received Agency accolades and awards. Complainant also asserts that Agency employees were also involved in the alleged harassment and decision to terminate her employment. For these reasons, she believes an employer/employee relationship could be found. In addition to the Agency’s inadequate decision, a review of the instant record also reveals deficiencies. The pre-complaint analysis conducted by an Agency attorney, and referenced by both the Agency and Complainant4, is reflected by two documents. The first, dated September 22, 2020, entitled “EEO Joint Employer Guidance - Working Relationship Information” contains eighteen questions. The short responses indicate that Complainant was paid by Hyperion and supervised by an onsite Hyperion manager (hereinafter “Hyperion Manager”). 4 The record reflects that the legal analysis documents were provided by Complainant when she was issued her Notice of Right to File Individual Complaint. 2021000668 5 The answers also stated the following: Complainant’s rate of pay was determined by the Agency’s contracting office and the Department of Labor; the work was conducted at an Agency facility; and the Agency provided the materials and equipment needed to perform the tasks. There is no indication who authored the document, nor are any of the documents relied upon for answers included in the record. Regarding the second document, an October 2, 2020 memorandum to the EEO Director from an Agency attorney, a more detailed recitation of facts is included. For example, the memorandum notes that Hyperion hired and assigned individuals; paid Complainant and withheld taxes; Hyperion-Manager assigned Complainant her duties, approved her leave request, and evaluated her performance. Further, Complainant’s termination letter was signed by Hyperion employees and it was Hyperion-Manager who was alleged to have harassed Complainant. Following these facts, the “Analysis” portion of the memorandum lists a dozen “non-exhaustive” factors and, without actually conducting an assessment, simply concludes that Complainant is not an Agency employee. Specifically, Agency counsel states: It is evident that the agency has some control over [Complainant’s] work environment. It is also clear that Hyperion maintained a significant level of control over [Complainant] as well. Accordingly, when balancing this control it is readily apparent that Hyperion had the authority to exert far more control over [Complainant] than the Agency. As such, it is the opinion of the undersigned that [Complainant] does not qualify as an agency employee or a joint employee. Even if we consider this “analysis.” which was not included in the Agency’s October 28, 2020 decision, it is insufficient to support the dismissal of Complainant’s complaint. The Agency has not set forth its evaluation of the relevant facts against the many factors in reaching its conclusion that the Agency “has some control” over Complainant’s work. Equally important, the record provided by the Agency does not support its conclusion that it should not be considered a joint employer. Although, as noted above, contract language is not dispositive, but it should be considered. Here, while Agency’s counsel’s pre-complaint analysis refers to a January 21, 2020 contract with Hyperion, as well as a November 2019 “Statement of Work”, these documents are not included in the record. In fact, the only document related to Hyperion is a copy of Complainant’s termination notice. The record does not contain affidavits from the relevant Hyperion officials and/or Agency officials regarding the day-to-day responsibilities and management of Complainant’s position.5 There is no documentation regarding Complainant’s assertion, presented to the Agency before it issued its decision, that she has held her position for thirteen years. 5 Complainant contends that, in addition to Hyperion-Manager, an Agency official was also in her chain of command and responsible for the alleged harassment and termination. 2021000668 6 Moreover, the Agency’s interpretation of the analysis used in contractor/employee determinations contains a foundational error. It reasons that, even though the Agency has some control, Hyperion has “the authority to exert far more control,” thereby releasing the Agency from joint employer status. As previously noted, 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 (April 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). Therefore, we remand the case to the Agency for a proper consideration of Complainant’s employment status for EEO purposes and a supplementation of the record. Untimely Counselor Contact The Agency argues, alternatively, that the complaint should be dismissed because Complainant waited beyond the time limit for contacting an EEO Counselor. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Commission regulations require that the Agency set forth the rationale for dismissing any claims in an EEO complaint, in a final decision. See 29 C.F.R. 1614.110(b). It is not appropriate for the Agency to address new dismissal grounds for the first time on appeal and in most circumstances the Commission has declined to address dismissal attempts made beyond the final decision. See Cornell S. v. Dep’t of Defense (Defense Health Agency), EEOC Appeal No. 0120171482 (Sept. 13, 2017). However, we shall exercise our discretion to determine that Complainant’s EEO Counselor contact was timely. The Agency reasons that Complainant should have contacted the EEO Counselor by September 17, 2020, within forty-five days of her August 3, 2020 notice of termination. Instead, according to the Agency, Complainant waited until September 22, 2020 to contact the counselor. The Counselor’s Report itself identifies September 14, 2020 as the date of “initial contact,” and September 22, 2020 as the date “pre-complaint intake interview conducted”. The Agency acknowledges the discrepancy, but argues an “important distinction”. 2021000668 7 According to the Agency, Complainant’s September 14, 2020 contact was “only as an information inquiry” and that she did not intend to use the EEO process until the intake interview was conducted on September 22, 2020. Complainant disputes the Agency’s account, stating that she tried to reach the EEO office by telephone on September 4, 2020 and September 8, 2020, and even went to the office on September 9, 2020.6 On September 9, 2020 Complainant called again, “this time leaving a message.” She describes additional messages being left, by both the Counselor and herself, including an expression of her intent in an September 11, 2020 message. Therefore, we do not find that the Agency’s assertion that Complainant’s earlier EEO Counselor contact lacked necessary intent is supported by the record. Complainant’s EEO Counselor contact was timely. CONCLUSION The Agency’s decision, finding that it is not Complainant’s joint employer for EEO purposes, is VACATED. The matter is REMANDED to the Agency in accordance with this decision and the ORDER below. ORDER Within forty-five (45) calendar days of the date this decision is issued, the Agency shall: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision and relevant in assessing whether Complainant is a contractor or employee for EEO purposes. The evidentiary record shall include, but is not limited to: the contract between Hyperion and the Agency; a position description for Complainant’s job; and affidavits from relevant Hyperion management, Complainant, and relevant Agency officials. A copy of the completed investigation shall be provided to Complainant. 2. Thereafter, the Agency shall either issue a new final decision dismissing the complaint, with an appropriate analysis of the relevant facts, or a letter accepting the complaint for investigation. 3. A copy of the supplemental investigation and final decision or letter of acceptance shall be provided to the Compliance Officer as set forth below. 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. 6 The office doors were locked, states Complainant, with staff teleworking due to COVID-19. 2021000668 8 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 (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 2021000668 9 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 (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. 2021000668 10 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 23, 2021 Date