Terrie M.v.Dep’t of Def.

Equal Employment Opportunity Commission

May 2, 2019

EEOC Appeal No. 2018000063 (E.E.O.C. May. 2, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Terrie M.,1
Complainant,

v.

Patrick M. Shanahan,
Acting Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Appeal No. 2018000063

Agency No. DHANCR 18-0016

DECISION

On September 17, 2018, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated
August 2, 2018, dismissing her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by a staffing firm
serving the Agency as a Licensed Practical Nurse (LPN) at its Walter Reed National Military
Medical Center, Internal Medicine Division, Medical Directorate in Bethesda, Maryland.

On April 9, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency subjected her to a discriminatory hostile work environment based on her race/color
(African-American/black) 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.

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1. On September 28, 2017, Coworker 12 inserted herself into a conversation she was having
with another African American coworker about hair. Coworker 1 called attention to
Complainant's wig, and told her that she should "wear it backwards" like another African-
American coworker and that "Rastafarian would look good on you."

2. On October 31, 2017, Coworker 1 called attention to the fact that Complainant was not
wearing a Halloween costume, then suggested that her professional clothes were a costume
and told her she just needed to "put white cream on [her] face."

3. On November 8, 2017, Coworker 1 inserted herself into a conversation Complainant was
having with other coworkers about hockey. Coworker 1 questioned whether any African
American people played hockey, and stated to Complainant that she believed there were
no professional African American hockey players because "Black people don't like the
cold" and "you people [African Americans] don't like snow." She then told Complainant:
"… I know you don't like snow. Does it snow in Africa? No!"

4. On November 21, 2017, Coworker 1 inserted herself into a conversation Complainant was
having with other coworkers about Thanksgiving plans, and stated that "you people
[African Americans] eat fried chicken and mac and cheese and have high cholesterol." She
then said told Complainant "wait, don't forget the ham!"

5. On November 24, 2017, after borrowing her colored pencils, Coworker 1 brought
Complainant a colored picture of a monkey sitting on a banana with the text "Eat your
Fruits & vegetables [sic] ... I'm watching!" Complainant refused to accept the picture, so
Coworker 1 taped it to Complainant's desk.

6. From August 2017 to December 2017, Coworker 1 made almost daily comments about
Complainant's weight and dietary choices, repeatedly coming up to her in the cafeteria and
telling her "you people [African Americans] can't eat like that." Coworker 1 also made
almost daily comments about the speed at which Complainant walked, telling her that she
was "slow," which Complainant also understood to refer to her weight and race.

7. From August 2017 to December 2017, Complainant's Agency supervisor witnessed and/or
was told by Complainant about the above incidents on an approximately daily basis, but
failed to take any preventative or remedial action.

2 We are unable to discern from the record if Coworker 1 is an employee of the Agency.

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The Agency dismissed the complaint for failure to state a claim because Complainant was an
employee of the staffing firm,3 not the Agency.4

This appeal followed.

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 therewith.

In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016),
the Commission recently 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
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.

3 In in the FAD, the Agency wrote “... Complainant is… employed by [staffing firm].”

4 The Agency also dismissed the complainant because it was untimely filed. In opposition to
Complainant’s appeal, the Agency concedes the complaint was timely filed.

5 The EEOC Compliance Manual and other guidance documents, as well as federal-sector
appellate decisions, are available online at www.eeoc.gov.

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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, 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 its FAD, the Agency acknowledged that Complainant works on Agency premises using Agency
equipment, and has served the Agency as a LPN since March 2014. This is a long duration. The
Agency acknowledged that the contract between it and the staffing firm requires Complainant to
have two years of prior experience, advanced life support certification, and fulfill continuing
education. This points to joint control over Complainant’s employment. The Agency conceded in
its FAD that it exercises control over Complainant’s work product by daily patient assignments
and feedback to her based on her work product, and that it monitors her time and attendance.
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The Agency’s factual findings in the FAD alone show it has sufficient control over Complainant’s
employment to be her joint employer for the purpose of using the 29 C.F.R. Part 1614 EEO
complaint process, and we so find. On appeal, Complainant submits a declaration that further
bolsters that she is jointly employed by the Agency, but we need not address this.

Accordingly, the FAD is REVERSED and the complaint is REMANDED to the Agency for further
processing pursuant to the following Order.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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).
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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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)
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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

May 2, 2019
Date