[Redacted], Lowell H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency.Download PDFEqual Employment Opportunity CommissionApr 29, 2021Appeal No. 2021001499 (E.E.O.C. Apr. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lowell H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021001499 Hearing No. 541-2019-00148X Agency No. DeCA-00234-2018 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision dated December 1, 2020, pertaining to 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND From September 2012 through August 2018, Complainant worked for Acosta Military Sales (hereinafter “Acosta”), an Agency contractor, and was assigned to the Agency’s Fort Carson Commissary in Colorado. Specifically, Complainant was a Retail Coverage Merchandiser and his job duties included: managing vendor stockers, building displays, cutting in new items, auditing the store for Acosta’s products, requesting labels, and stocking products. Believing that he was subjected to unlawful reprisal for prior protected EEO activity, Complainant filed a formal EEO complaint on September 6, 2018. 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 2021001499 The Agency framed the claims as follows: a. On July 18, 2018, Complainant was reassigned from the Fort Carson Commissary to the Peterson Air Force Base Commissary. b. On July 16, 2018, Complainant sent an e-mail to his [Aurora] Regional Manager, who failed to respond. c. In April 2018, Complainant applied for a promotion [with Aurora]. He was not selected. In July 2018, the Regional Manager informed Complainant that he was not selected due to complaints received from DeCA management. d. In November 2017, Complainant’s [Aurora] supervisor advised him that his peers were alleging his work ethic was declining. She advised Complainant that he needed to put in more effort. On October 23, 2018, the Agency issued a decision dismissing the complaint for failure to state a claim, finding that Complainant was not an Agency employee, but a contractor. Complainant appealed the decision to the Commission. In the prior decision, the Commission found that the record was inadequate to make a determination regarding Complainant’s employment status. See Lowell H. v. Dep’t of Defense (Defense Commissary Agency), EEOC Appeal No. 2019000979 (May 3, 2019). The case was remanded to the Agency for a supplemental investigation in order to “gather additional facts on the Agency’s control or right to control Complainant’s employment.” See id. Specifically, the investigation was to encompass the following matters: (a) the identity of the peers making complaints about Complainant (specifically, their positions and employers; (b) whether the staffing firm onsite supervisor worked at the Fort Carson Commissary during Complainant’s shifts there, and if so, to what extent; (c) the specific nature of the onsite supervisor’s day to day supervision of Complainant and his work; (d) Agency supervision and control over Complainant’s day to day work; (e) information going to the staffing firm’s independence in deciding not to promote Complainant and transferring him to the Peterson Air Force Base Commissary - specifically, was it based on instructions, demands, input or complaints made by the Agency or from the staffing firm’s independent assessments based on its inquiry or investigation into Complainant’s performance or its own observations. See id. (footnotes omitted). In July 2019, the Agency completed the supplemental investigation and provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 3 2021001499 While the matter was pending before an AJ, on September 11, 2020, the Agency filed a “Motion to Dismiss for Lack of Standing”. Complainant filed an opposition. After considering the filings, the AJ determined there were material factual disputes and a “targeted hearing,” comprised of four witnesses, was necessary to determine the Agency’s level of control over Complainant. A hearing was held on November 19, 2020. Thereafter, on November 23, 2020, the AJ issued a decision granting the Agency’s motion. The case was dismissed on the grounds that Complainant was not an Agency employee and lacked standing to use the federal EEO complaint process. On December 1, 2020, the Agency issued a final decision fully implementing the AJ’s decision. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all factual findings following a limited scope hearing that are expressly identified as derived from the hearing by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). All factual findings that are not derived from a hearing or that are not expressly identified as such by the AJ are subject to de novo review. An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 9, at § VI.B (Aug. 5, 2015). 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). 4 2021001499 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)2; 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 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. 2 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. 5 2021001499 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 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 AJ observed that Complainant’s first and second line supervisors (“Sales Rep Lead” and “Regional Manager”) were Acosta employees. The Sales Rep Lead from Acosta assigned Complainant’s hours and job duties, approved his time and attendance, and evaluated his performance. It was Acosta that decided to reassign Complainant to Peterson AFB. 6 2021001499 While acknowledging that Complainant performed his job duties on Agency premises, and Agency officials controlled his access to the store, the AJ explicitly found that the Agency did not have the authority to reassign or terminate Complainant. Contrary to Complainant’s allegation that Agency management (“Grocery Manager” and “Store Director”) provided his Acosta supervisor with negative feedback and criticisms of his performance, the AJ concluded such assertions were not supported by the record. According to the AJ, “. . . evidence in the record does not support a conclusion that the Agency asserted any meaningful pressure or threats on [Acosta] to effectuate the transfer, instead the decision to transfer Complainant was made by [Sales Rep Lead] and not by the Agency.” The record does not reflect sufficient control by the Agency to be considered Complainant’s joint employer for EEO purposes. Only a few factors, such as the length of the parties relationship (six years) and the work being performed at an Agency facility, indicate an employer/employee relationship. The majority of the factors reflect Complainant is a contractor. Complainant does not dispute that his rate of pay was set by Acosta, he was assigned work by the Acosta Sales Rep Lead, and she approved his leave requests. Further, the record shows that the Acosta Sales Rep Lead came onsite approximately once per week3, and evaluated Complainant’s performance. Complainant’s belief that the Agency provided negative feedback to Acosta management, which influenced Acosta’s decision to transfer him, is not supported by the record. In fact, statements by both Acosta management and Agency management reflect that any discussions regarding performance was limited to overall satisfaction with Acosta, and not directed at any individual. The Store Director went so far as to attest that it was Acosta’s responsibility to come onsite to check on their employees, “It’s not my job, I have my own people to keep up with.” As for Complainant concerns with negative comments by “peers,” the Acosta supervisor explained these views (i.e. decline in his work ethic) were the result her own observations during some of her unannounced visits. Further, she stated that she considered Complainant’s position at Fort Carson to be a conflict of interest, because Complainant’s mother worked there as an Agency secretary. Such evidence does not support Complainant’s claims that Agency management officials influenced or directed Acosta to transfer him to another facility. CONCLUSION Based on our careful review of the entire record, the Agency’s final decision adopting the AJ’s decision dismissing the complaint is AFFIRMED. 3 In an effort to attack the credibility of witnesses, Complainant cites perceived contradictions in their testimony. Whether the Acosta supervisor visited Complainant’s worksite once a week, more than once a week, or less than once a week, is immaterial to our disposition of this case. 7 2021001499 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). 8 2021001499 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. 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 29, 2021 Date Copy with citationCopy as parenthetical citation