U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Salvatore B.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency. Appeal No. 2021005053 Hearing No. 410-2018-00277X Agency No. HHS-CDC-0462-2016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 20, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was a consultant for Rumph & Associates (“R&A”), a private firm holding a contract with the Agency’s Centers for Disease Control and Prevention, Center for Global Health, Office of the Country Director in Maputo, Mozambique. On December 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), sexual orientation, and reprisal for protected EEO activity (reporting sexual harassment) 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. 2021005053 2 1. On December 1, 2016, he was transitioned off the communication technical support tasking. 2. From July 27, 2014, through February 12, 2016, he was subjected to sexual harassment when: a. On July 27, 2014, he toured the CDC COR’s new apartment, and the COR dropped his pants; b. Throughout 2014-2015, the CDC COR made frequent invites to one-on-one activities such as dinners or hanging out on weekends; c. On August 11, 2015, he was sent multiple Facebook messages from the CDC COR inquiring as to why he was single and about his dating/sex life; d. On January 15, 2016, he received remarks and texts from the CDC COR about wearing underwear to his birthday party; and e. On February 12, 2016, he received an email forwarded picture of a male model from the CDC COR with remarks to his resemblance. 3. From July 2016 to September 2016, he was subjected to retaliatory harassment when: a. In July 2016, the CDC COR moved him into his office space without the permission of the Director; b. In August 2016, the CDC COR scrutinized his work well beyond that of others by making him undergo an extreme round of edits; c. In September 2016, for weeks the CDC COR would not greet him, look at him or acknowledge him in any manner; d. On dates not specified, the CDC COR demonstrated passive aggressive behaviors in one-on-one meetings and at times in meetings with other senior staff; and e. On July 18, 2016, the CDC COR denied his request for time off. 4. From August 2015 to September 2016, he was subjected to harassment regarding his work assignments when: a. On August 16, 2015, he was informed the agency had placed a stop work order for the contract he was working under and he was unable to work under the contract until September 9, 2015; 2021005053 3 b. On September 10, 2015, the CDC COR put a corrective action plan in place as a means to assert control over how he delivered his scope of work; and c. Between October 2015 and September 2016, he was assigned menial tasks below his skill and pay grade. 5. On January 13, 2017, Complainant was notified that his contract with the Agency would not be renewed. At the conclusion of its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On July 30, 2021, the AJ assigned to the case granted the Agency’s June 12, 2019 motion to dismiss the complaint. The AJ concluded Complainant lacked standing to file the complaint because he was not a Federal employee or applicant for employment. The AJ’s decision included an extensive analysis of whether or not the Agency could be considered Complainant’s joint employer but concluded it could not. The AJ further found that many of the alleged incidents of harassment were untimely raised and were not like or related to timely-raised issued.2 The Agency issued final order adopting the AJ’s dismissal decision. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Standing to File an EEO Complaint 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. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). The issue here is whether or not the Agency can be considered Complainant’s joint employer within the meaning of the 29 C.F.R. Part 1614 administrative EEO complaint process. 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); 5 EEOC Enforcement 2 The record establishes that Complainant’s initial contact with an Agency EEO counselor on any of these matters was on September 12, 2016. 2021005053 4 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. 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. 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, 2012 WL 5818075 (Nov. 8, 2012). 2021005053 5 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). 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. Here, we conclude that the weight of the evidence does not establish that the Agency can be considered Complainant’s joint employer for the purpose of utilizing the 29 C.F.R. Part 1614 EEO complaint process. As an initial matter, the evidence does not support a finding that R&A was a “staffing firm” with the purpose of filling vacancies into positions under Agency management control. Rather, R&A had a contract with the Agency to perform public health communication services to support the Agency’s Mozambique public health activities. In turn, the record indicates that Complainant had a contract with R&A to provide consulting services. As a consultant, Complainant was assigned to and executed complex communications-related projects that required a high level of skill and expertise. Significantly, Complainant entered into this contract with R&A as a corporate entity - a limited liability company (“LLC”) - casting doubt on his being an employee of either R&A or the Agency. As a result of his contract with R&A, it appears he was its subcontractor, assisting it in the fulfillment of its contractual obligations with the Agency. The contract between R&A and Complainant contained language stating that: I understand that as a consultant of a government contractor, I represent an independent organization and I am not an agent of the Government. Therefore, I agree that unless I have prior written authorization from the CDC, I will, at the beginning of interactions with CDC employees, employees of other governmental entities, members of the public, or the media (when such communication or interaction relates to the contractor’s work with the CDC), identify myself as a consultant of a contractor. The contract went on to specify that Complainant would identify himself as a contractor in all written communications, including emails, at the beginning of telephone conversations or conference calls, that he would not wear any Agency logo on clothing except for an Agency issued security badge, and that he would programs his voicemail message to identify himself as a contractor’s consultant. 2021005053 6 The Agency paid a pre-determined yearly monetary amount to R&A for its contract performance. R&A negotiated with and set Complainant’s rate of pay, work hours, and authorized his leave usage. While Complainant was initially paid by the hour, a subsequent amendment to the contract authorized payment by the job for the period from February 12, 2016, to February 11, 2017. The Agency did not withhold taxes or social security payments on behalf of Complainant, nor did he accumulate retirement benefits from the Agency. The record shows the Agency provided R&A with a single office space in its facility with necessary office equipment. However, it appears that R&A was responsible for the assignment of its personnel to this space. As the AJ noted, the work performed by Complainant required a high level of expertise and independence. We further agree with the AJ’s finding that the work was not part of the regular business of the Agency. The contract shows that Complainant was hired to provide health communications expertise, while the regular business of the Agency is to detect and control the spread of diseases. Indeed, the contract was eventually terminated when the Agency’s needs in that area changed and Complainant has not shown that other health communications experts were hired afterwards at the facility, as might be expected to be the case if such services were part of the regular business of the Agency. Again, the fact that Complainant was engaged in his own distinct occupation or business is demonstrated by the fact that Complainant’s services agreement with R&A showed he operated as a corporate entity. Complainant argues that despite the language of the contract, the amount of control exercised by the Agency Contracting Officer Representative (COR) was such that the Agency can be considered to have exercised de facto control over his work, thus supporting a finding of Agency employment. Following a review of the record, however, we find the evidence in this regard to be inconclusive. Complainant provides examples of the COR’s alleged tight control and micromanagement of his actions, while the Agency denies each example or contends that Complainant is exaggerating. However, we concur with the AJ that virtually all federal contracts are overseen by a COR, whose role is to ensure compliance with the contract, not provide day-to- day management control over projects. Ultimately, the burden of proof lies with Complainant and we find that Complainant has not shown, by a preponderance of the evidence, that the COR’s control over his work was in fact sufficient to support a finding of joint employment, especially as the balance of the remaining evidence as outlined above supports a finding of no joint employment. Finally, the evidence shows that Complainant lost his position working with the Agency because of the Agency’s decision not to exercise its option to renew its R&A contract for a third year. The facility Director averred that the reason the contract was not renewed was because the Agency’s “priorities were changing towards care and treatment and other biomedical interventions.” There is no evidence that this decision was made to specifically target Complainant due to some asserted dissatisfaction with his work performance. Complainant was notified by R&A, not by the Agency, of the decision not to renew the contract. 2021005053 7 The evidence shows that R&A, at that point, had the sole authority to either end its relationship with Complainant or to transfer him to another contract. Because we find that Complainant is not a Federal employee and may not be considered the Agency’s joint employee, we conclude that the AJ correctly determined that the complaint should be dismissed due to Complainant’s lack of standing to bring a complaint in the 29 C.F.R. Part 1614 EEO complaint process. As such, we need not address the additional matter of the timeliness of Complainant’s EEO counselor contact. CONCLUSION The Agency’s Final Order adopting the AJ’s dismissal of the complaint 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 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. 2021005053 8 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. 2021005053 9 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 10, 2022 Date
