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

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2022000492 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyong L,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000492 Agency No. ARLEE21MAY01714 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC) dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked with a contracting firm (FITT Scientific) serving the Agency as an Instructor at the Agency’s Army Logistics University in Fort Lee, Virginia. On August 30, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American), sex (female), color (Black), disability, and age. In its final decision dated September 30, 2021, the Agency determined that the formal complaint was comprised of the following claims: 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. 2022000492 2 Complainant was terminated from FITT Scientific and subjected to a hostile work environment from January 2021-March 3, 2021 when: a. On September 13, 2019, [Complainant] informed management that there was writing of racial epithets on the male restroom wall; b. On February 19, 2021, [a named Agency employee, A1] berated [Complainant], stating he was not her co-worker, he was her team lead and he makes the decision, he was harsh with his words and raised his voice; c. In January 2021 to March 2021, [A1] used [Complainant’s] disability to badger, threaten and provoke a reaction from her; d. On March 3, 2021, during a meeting, [A1] yelled at [Complainant] and informed her that he would call during her lunch to speak with her. e. On March 3, 2021, [A1] questioned [Complainant] about the nature of her medical appointment; f. In March 2021, [Complainant] informed [A1] that she would be attending her mother’s surgery and he made the comment how many surgeries is she going to have. In its final decision, the Agency dismissed the formal complaint for failure to state a claim.2 The Agency reasoned that Complainant was a contractor and not a government employee. In addition, the Agency reasoned that it did not exercise sufficient control over Complainant’s employment to be considered her employer for EEO purposes. The Agency also dismissed Complainant’s complaint on the alternate grounds of untimely EEO counselor contact. The Agency reasoned that Complainant did not initiated EEO contact until May 25, 2021, outside the applicable time limit. In addition, the Agency set forth that Complainant did not provide justification for her untimely EEO contact. 2 We note that the record contains a memorandum dated August 20, 2021 (prior to the Agency issuing its final decision) from an Agency attorney from the Office of the Staff Judge Advocate to the Agency’s EEO Director regarding a legal analysis of Complainant’s employment status. Complaint File at 40-43. The memorandum concluded that the Agency lacked control over Complainant and found that Complainant does not having standing as an Agency employee for EEO purposes. It is unclear to what extent the Agency’s EEO Office relied on this document in reaching its final decision. 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). We do not consider the Agency’s August 20, 2021 memorandum in reaching our determination herein. 2022000492 3 The instant appeal followed. On appeal, Complainant reiterates that the Agency subjected her to discrimination and harassment based on her protected classes. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency reiterates its reasoning set forth in its final decision. ANALYSIS AND FINDINGS Untimely EEO Counselor Contact 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. We find that the Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. While the record reflects that Complainant initiated EEO contact on May 25, 2021, outside of the applicable time limit, the EEO Counselor’s Report reflects that Complainant asserts that as a contractor, she was not aware of the applicable 45-day time limit. Complaint File at 49. In addition, Complainant asserts after her termination, her daughter was hospitalized and her niece died. While Complainant asserts that she was not aware of the applicable time limit, the Agency has not addressed her assertion in its final decision and/or brief in response to Complainant’s appeal. The record is devoid of evidence that Complainant had actual or constructive notice of the applicable time limit. Based on the foregoing, we extend the applicable time limit in the instant matter. Dismissal for Failure to State a Claim The issue here is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim on the basis that Complainant was not its employee. 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. 2022000492 4 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. 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. 2022000492 5 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(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 the instant matter, Complainant is alleging a hostile work environment claim that culminated in her termination. Thus, the circumstances surrounding her termination are significant to the analysis of whether the Agency is a joint employer of Complainant for EEO purposes. Here, 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. First, the complaint file does not contain a copy of the contract between the Agency and FITT Scientific. Secord, while the EEO Counselor’s Report reflects that the EEO Counselor interviewed the Deputy Program Manager (DPM) from the contracting firm and A1 from the Agency, the record reflects that these interviews were limited and do not contain detailed information pertaining to the events surrounding Complainant’s termination. The record contains some evidence indicating that the Agency had some role in Complainant’s termination. For example, according to the EEO Counselor’s Report, the DPM stated that he met with an Agency employee (A1) on March 2, 2021 to address concerns regarding Complainant’s performance. 2022000492 6 The DPM also stated that on March 3, 2021 (the date Complainant was terminated), he received a call from the Agency’s Contract Officer representative (COR) regarding an interaction between Complainant and A1.3 DPM asserts that after speaking with his management, he asked Complainant to come to the contracting firm to issue her a termination notice. The record also contains a copy of the termination notice dated March 3, 2021 to Complainant from DPM. Complaint File at 55. Therein, DPM provides that the contractor received notification from the Agency of unacceptable workplace behavior with respect to Complainant. Id. DPM, in the termination letter, further provided that “[the Agency] is not pleased with [Complainant’s] actions and it is within FITT’s rights and best interest to terminate [Complainant’s] employment…” Id. Thus, it appears the Agency had some role in Complainant’s termination. However, it is unclear from the record whether the Agency requested the contracting firm to terminate Complainant’s services or if the contracting firm made its own independent decision (subsequent to receiving the Agency’s information regarding Complainant) with respect to Complainant’s termination.4 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 sixty (60) calendar days from the date this decision is issued, the Agency is ORDERED to take the following actions: 1. Conduct a supplemental investigation to obtain evidence consistent with this decision and relevant in assessing whether the Agency is a joint employer for EEO purposes. The evidentiary record shall include, but is not limited to the following: the contract between FITT Scientific and the Agency, and affidavits from relevant FITT Scientific officials (including DPM). DPM’s affidavit shall address the circumstances surrounding Complainant’s termination and DPM’s meeting with A1 on March 2, 2021 and DPM’s phone call with the Agency’s COR on March 3, 2021. DPM’s affidavit shall also address what action if any, the Agency, requested DPM/FITT 3 We note that the record contains a declaration under penalty of perjury from the Agency’s COR. However, COR’s declaration does not address his phone call to DPM on March 3, 2021, as referenced by DPM. In addition, the declaration does not address the circumstances surrounding Complainant’s termination. 4 According to the EEO Counselor’s Report, DPM asserts that, after speaking with the Agency’s COR and prior to issuing Complainant her termination notice, he spoke with his management. However, it is unclear from the record what the nature of the discussion was between DPM and his management and whether this constituted an independent decision on the part of FITT Scientific to terminate Complainant. 2022000492 7 Scientific take with respect to Complainant and what was the nature of the conversation DPM had with his management prior to issuing Complainant the termination notice. The supplemental investigation shall also include affidavits from A1 and the COR with respect to their discussions with FITT Scientific (DPM) regarding Complainant and whether it requested FITT Scientific to take any action with respect to Complainant. A copy of the completed investigation shall be provided to Complainant. 2. The Agency shall either 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. 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. 2022000492 8 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, 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). 2022000492 9 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. 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 2, 2022 Date