[Redacted], Mark L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2021004993 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2021004993 Agency No. NGA-0030-2021 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 22, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of 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 with a staffing firm (Service Source, Inc.), serving the Agency as a Grounds Laborer at an Agency facility in Arnold, Missouri. On August 2, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (developmental disability). In its final decision, dated August 22, 2021, the Agency determined that the formal complaint was comprised of the following claims: 1. On May 13, 2021, [Complainant was] suspended by Service Source, Inc. personnel and [his] badge and “hang tag” were confiscated after an incident occurred between [him] and a facilities cafeteria worker; 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. 2021004993 2 2. On May 21, 2021, [Complainant] became aware [his] employment with Service, Source, Inc. was being terminated. The Agency dismissed the formal complaint for failure to state a claim, concluding that Complainant had no standing to file a complaint because he was not its employee but rather a contractor with Service Source Inc. Specifically, the Agency found “[a]lthough [the Agency] may have revoked [his] site access, Service Source Inc. terminated [his] employment with [its] firm. [Complainant] admitted that Service Source, Inc. personnel informed [him] that [he was] being terminated and that it was Service Source, Inc. personnel that retrieved [his] hang tag and [Agency] badge.” The Agency further reasoned that the staffing firm controlled Complainant’s daily work assignments, reviewed his work, and that Complainant’s pay and benefits were provided by the staffing firm. The instant appeal followed. On appeal, Complainant, through his representative (his father), requests that we reverse the Agency’s dismissal and that the Agency should be deemed a joint employer for EEO purposes. Complainant asserts that personnel from the staffing firm made various comments that its “hands were tied” regarding Complainant’s termination and that the staffing firm did not want to terminate Complainant but that the Agency was being unreasonable and “tightly controlled the job site.” Complainant also noted that the EEO Counselor attempted to contact the staffing firm regarding the circumstances surrounding his termination, but the staffing firm did not respond. Complainant asserts that the staffing firm was “just the messenger” with respect to his termination and that the Agency dictated to the staffing firm to terminate him. Complainant, on appeal, also addressed the merits of his complaint. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim on the basis that he was not its employee. 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. EEOC Regulation 29 C.F.R. §1614.103(c) provides that within the covered departments, 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). 2021004993 3 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). 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. 2021004993 4 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). Here, the record is not sufficiently developed to make a reasoned 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 Service Source, Inc. Second, while the EEO Counselor’s Report reflects that the EEO Counselor attempted to contact the staffing firm, the record does not contain any evidence that the staffing firm provided any information pertaining to the circumstances surrounding Complainant’s termination. The EEO Counselor’s Report reflects that the counselor interviewed some Agency personnel regarding Complainant’s termination. According to the EEO Counselor’s Report, while the Agency’s Area Security Officer (ASO) asserted that the Agency did not remove Complainant from his position with the staffing firm and that the Agency did not recommend Complainant be terminated, the EEO Counselor’s Report contains other statements indicating the Agency had some role in Complainant’s termination. For example, according to the EEO Counselor’s Report, ASO stated that he contacted a named Service Source Human Resource Officer after some alleged incidents involving Complainant at the Agency’s facility and asked him to come on site. ASO asserted that Agency Security “recommended to [a named Service Source employee] that [Complainant] not have access to [the Agency] permanently.” The record also contains a copy of an email from ASO dated May 13, 2021. Therein, ASO asserts that “a [Be on the Lookout (BOLO)] was issued advising that [Complainant] was no longer allowed on the premises.” Complainant, in his formal complaint, also makes statements indicating that the Agency had some role in his termination. Specifically, Complainant lists several employees of the staffing firm and asserts that these individuals made comments that the Agency “forced” and “demanded” Complainant’s termination. 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 forty-five (45) calendar days of the date this decision is issued, the Agency is ORDERED to take the following action: 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 Service Source Inc. and the Agency, and affidavits from relevant Service Source, Inc. officials (including the individuals referenced i n Complainant’s formal complaint) , Complainant, and relevant Agency officials pertaining to the circumstances surrounding Complainant’s termination. A copy of the completed investigation shall be provided to Complainant. 2021004993 5 2. Thereafter, 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 final decision or letter of acceptance shall be provided to the Compliance Officer as set forth below. IMPLEMENTATION OF THE COMMISSION’S DECISION 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. 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. 2021004993 6 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). 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. 2021004993 7 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 December 16, 2021 Date