[Redacted], Homer V., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2022000447 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Homer V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000447 Agency No. ARCEHWV21AUG02647 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 1, 2021, dismissing his 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., 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 worked as a Contractor Quality Control (CQC) Systems Manager for a Low-Income Housing Project in Martin, Kentucky through a contract which SAF, Inc. entered with the Agency. On September 23, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), disability, and reprisal (for writing a statement against an Agency employee). In its final decision dated October 1, 2021, the Agency framed Complainant’s claims in the following fashion: 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. 2022000447 2 1) In September 2021, [Complainant] was the only person punished for writing a letter against an [Agency] employee. 2) In September 2021, [Complainant was] removed from the Martin, Kentucky Town of Martin Low Income Housing project and future Huntington District projects. 3) In March 2021, [Complainant[ referred to [his] disability and in September 2021, [Complainant] was referred to as incompetent. The Agency dismissed Complainant’s complaint for failure to state a claim. The Agency reasoned that it had determined through a legal analysis during the pre-complaint process that Complainant does not qualify as an Agency employee for EEO purposes.2 The instant appeal followed. Complainant reiterates that he was removed from the Martin, Kentucky Low Income Housing Project. In response, the Agency sets forth that Complainant does not qualify as an employee of the Agency for EEO purposes. ANALYSIS AND FINDINGS As an initial matter, we note that crux of Complainant’s complaint appears to be that he was removed from the Martin, Kentucky Low Income Housing project by the Agency. The additional matters listed in the Agency’s final decision appear to be background information pertaining to this claim. EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints of 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 department, agencies, and units, Part 1614 applies to all employees and applicants for employment. 2 We note that the record contains a memorandum dated September 7, 2021 (prior to the Agency issuing its final decision) from an Agency Assistant District Counsel (who appears to be outside of the Agency’s EEO Office) to the Agency’s EEO Office regarding a legal analysis of Complainant’s employment status. The memorandum concluded that Complainant does not having standing as an Agency employee for EEO purposes. The Agency’s final decision appears to reference this memorandum and rely on it in reaching its decision to dismiss Complainant’s complaint. We remind the Agency of its obligation to maintain a firewall between its EEO functions and the Agency’s defensive function. See Management Directive 110 for 29 C.F.R. Part 1614, Ch. 1, (IV)(D) (rev. Aug. 5, 2015). 2022000447 3 In Serita B. v, Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers” and noted that 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); 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, however, 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 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). 2022000447 4 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(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). We find that the record is not sufficiently developed to make a determination as to whether the Agency is a joint employer for the purpose of using the 29 C.F.R, Part 1614 complaint process. Complainant alleges that he was removed from the Martin, Kentucky Low Income Housing Project at the direction of the Agency. In addition, Complainant appears to be alleging, based on statements in the EEO Counselor’s Report and formal complaint, that he was also prevented from working on other projects in the Huntington District. Thus, the circumstances surrounding Complainant’s removal from the Martin, Kentucky project and future projects is significant to whether the Agency is a joint employer for EEO purposes. The record reflects that Complainant’s removal from the Martin, Kentucky project came at the direction of the Agency. The record contains a memorandum dated August 13, 2021, from the Agency’s Contracting Officer. Therein, the Agency’s Contracting Officer sets forth that “[d]ue to [Complainant’s] behavior, the Administrative Contracting Officer (ACO)…issued notice to SAF that [Complainant] was to be immediately removed from the project site and would not be allowed to return…it is my decision to uphold the ACO’s decision to not allow [Complainant] to return to the project site…SAF shall immediately replace [Complainant] with a competent and qualified CQC Systems Manager to be present on site.” However, it is unclear whether SAF, Inc. continued to employ Complainant on other projects, subsequent to his removal from the Martin, Kentucky Housing project. 2022000447 5 We have found that when a staffing/contracting firm continues to employ complainant in another location after the Agency decided it no longer wanted his services that the Agency was not a joint employer. See Murphy v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120132014 (Sept. 17, 2013). Complainant appears to allege during EEO counseling and in his formal complaint that he was also removed from other projects at the direction of the Agency. However, the record does not contain any affidavits from SAF Inc. officials or Complainant addressing whether it has continued to employ Complainant on other projects, subsequent to his removal from the Martin, Kentucky Housing project. Based on the foregoing, we VACATE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter for a supplemental investigation in accordance with the Order below. ORDER Within sixty (60) calendar days from the date this decision is issued, the Agency ORDERED to take the following actions: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision. The supplemental investigation shall include an affidavit from Complainant indicating whether SAF Inc. has continued to employ him on other projects, subsequent to his removal from the Martin, Kentucky Housing project. The supplemental investigation shall also include affidavits from relevant SAF, Inc. officials addressing whether it has continued to employ Complainant, on other projects subsequent to his removal from the Martin, Kentucky Housing project. These affidavits shall also address with specificity, if SAF Inc. has not continued to employ Complainant, the reason SAF Inc. has not continued to employ Complainant on other projects. The supplemental investigation shall also include affidavits from relevant Agency officials, such as ACO, indicating whether the Agency has directed SAF Inc. not to employ Complainant on other projects, in addition to the Martin, Kentucky Housing project. The supplemental investigation shall also include any other relevant affidavits and documentation. 2. The Agency shall issue a new final decision dismissing the complaint, with an appropriate analysis of the relevant facts and with appeal rights to the Commission, or a letter accepting Complainant’s complaint for investigation. 3. A copy of the supplemental investigation and new dismissal 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. 2022000447 6 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 (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 2022000447 7 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. 2022000447 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 March 21, 2022 Date