[Redacted], Joseph Q., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Nov 21, 2022

Appeal No. 2022002392 (E.E.O.C. Nov. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joseph Q.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency. Appeal No. 2022002392 Agency No. 2021-MDA-00010 DECISION On March 29, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a March 20, 2022 final Agency decision (FAD) dismissing his complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the period at issue Complainant was employed by PeopleTec. ("Staffing Firm 1"), a subcontractor to Parson ("Staffing Firm 2"), serving as an Advanced Engineer (Technical Lead) for MDA's Battle Command (known as BC), Advanced Research (known as BCDV) to July 27, 2021, and then to August 16, 2021, as an Advanced Engineer (Requirements Interfaces Engineer) in MDA’s Program Office of Engineering (known as BCE) in the Redstone Arsenal in Huntsville, Alabama. On September 21, 2021, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to harassment and discrimination based on his race (Caucasian),2 sex (male) and age (58 and 59) when: 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. 2022002392 2 (a) From September 2020 to August 16, 2021, the BC Chief Systems Engineer (“BC Chief”), who was his government lead, participated in and allowed him to be belittled with regard to the following: 1. Beginning in September 2020, she scolded and laughed at him in front of other employees. 2. Beginning in September 2020, she publicly made jokes about how he was performing and his duties. 3. Beginning in September 2020, she used inappropriate comments towards him such as "you old guys don't know how to do it”; and 4. On July 28, 2021, she transferred him from BCDV to a lower graded assignment in BCE. (b) On August 16, 2021, he was terminated and placed on a do-not-hire list. (c) In September 2020, he witnessed the Requirements and Interoperability Agency Lead (“Requirements Lead”), who reported to the BC Chief, use every swear word in the book to describe how she felt about another employee. Following an EEO investigation, on March 20, 2022, the Agency rescinded its acceptance of Complainant’s complaint and dismissed it for failure to state a claim because he was an employee of Staffing Firm 1, not the Agency.3 The instant appeal followed. On appeal, Complainant argues that the Agency is his common law joint employer. In reply, the Agency argues that the FAD should be affirmed. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim because he was not its employee. The federal sector EEO complaint process is limited to employees and applicants for employment in covered departments, agencies and units. 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,” 2 Later, during the EEO investigation, Complainant added the basis of race. 3 On March 21, 2022, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ dismissed his hearing request because a FAD was already issued. 2022002392 3 Section 2-III(B)(1)(a)(iii)(b) OLC Control No. EEOC-CVG-2000-2 (May 12, 2000) (Compliance Manual); EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms OLC Control No. EEOC-CVG-1998-2 (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. 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. 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. 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), req. to reconsider 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). 2022002392 4 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. The fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances in the individual’s relationship with the agency should be considered to determine if the agency should be deemed the worker’s joint employer. Enforcement Guidance, “Coverage Issues,” at Qs. 1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual’s work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2. On appeal, Complainant, citing to the record, argues that the Agency had enough control over his employment to be his common law joint employer. He cites to the Staffing Firm 2’s Program Manager, who stated that around December 2019 he became Complainant’s supervisor, and further stated the BC Chief micromanaged everyone in her purview and directed subordinates without informing supervisors. Complainant and witnesses stated the BC Chief would instruct Complainant to fetch people for meetings, and the Requirements Lead stated she gave Complainant instructions as an electronic calendar user to stop doing certain things he was doing. Regarding issue (a)(4), the BC Chief stated Staffing Firm 2 made the assignment decision, and she had no role in this or knowledge of why it happened. A Staffing Firm 2 Contract Program Manager stated Complainant agreed to this transfer which maximized his extensive system and requirements engineering experience and did not involve any reduction in pay or technical responsibility level. Regarding issue (b), Complainant’s termination from the position in question, the BC Chief stated she had no role in this or knowledge of why it happened. The PeopleTec. lead subcontractor to Staffing Firm 2, who was Complainant’s direct supervisor, stated the Staffing Firm 2 Program Manager informed him that under the new contract Staffing Firm 2 had with the 2022002392 5 Agency, Complainant’s job category of Engineer 5 was eliminated and replaced with the Engineer 3 category. The staffing firm direct supervisor stated that the Staffing Firm 2 Program Manager asked him if he wanted to submit Complainant for the Engineer 3 category, but he did not because it would cause Complainant’s annual salary to be reduced by $64,840. Instead, he moved Complainant to another position off the new contract outside MDA that maintained his current salary. The staffing firm direct supervisor was unaware of any do-not-hire list. While in this case some factors point to a joint employment relationship, a significant factor in determining whether the Agency was Complainant's joint employer is whether it had the tantamount power to terminate him. This is especially true because Complainant alleges the Agency terminated his services. Murphy v. Veterans Affairs, EEOC Appeal No. 0120132014 (Sept. 17, 2013). Witness testimony from the staffing firm indicates that the staffing firm, not the Agency chose to move Complainant away from the Agency in order to prevent his loss of pay when his job category was eliminated. These assertions are supported by the fact that Staffing Firm 1 continued to employ him after he left MDA. Complainant confirmed this in his December 28, 2021 investigatory affidavit. In sum, we find that the Agency did not have sufficient control over Complainant’s employment to be his common law joint employer. The FAD is AFFIRMED. 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 2022002392 6 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 (S0610) 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. 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. 2022002392 7 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 November 21, 2022 Date