0120143016
01-05-2016
Wilda M.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilda M.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120143016
Agency No. FS-2014-00361
DECISION
On August 29 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 12, 2014, 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 an intern with the University of Hawaii on the Hawaii Permanent Forest Plot Network (HIPPNET) project serving the Agency's Forest Service as a Field Crew Intern with the Institute of Pacific Island Forestry in Hilo, Hawaii. According to her first line Forest Supervisor, Complainant's internship on the HIPPNET project required she become a Forest Service volunteer.
On April 21, 2014, Complainant filed a formal complaint alleging that the Agency's Forest Service harassed and discriminated against her based on her sex (female) and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On August 31, 2013 to October 31, 2013, male Intern 1 subjected her to harassing treatment, including:
a. On August 31, 2013, during a farewell function, he attempted to pull her away from the group, grabbed her towards him, and attempted to kiss her;
b. On September 2, 2013, he left two dead pheasants hanging from the rafters of her garage and a letter containing the birds' feet and feathers on her driver's seat;
c. On September 8, 2013, and September 10, 2013, he left her threatening voice mail messages; and
d. Between October 1, 2013 and October 21, 2013, he would appear at her work-site, at hours outside his work schedule, and stare and/or glare at her.
2. On or about September 16, 2013, the Agency directed her to stay home (she returned by October 1, 2013).2
3. On October 1, 2013, she complained to Forest Service management about the alleged harassment, but instead of taking immediate and appropriate corrective action, management officials advised her to "leave [her] personal life at home" and further informed her that she was being placed on probation and that her behavior would be closely monitored from then on.
4. On October 21, 2013, she advised Forest Service management that she could not continue with her internship, as she did not feel management had taken appropriate measures to protect her from Intern 1, and on October 31, 2013, she was constructively discharged.
Complainant contended that the harassment occurred from August 31, 2013 to October 31, 2013. The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling on February 4, 2014, well beyond the 45 calendar day time limit, and the record showed she had constructive knowledge of the time limit.
The Agency also dismissed the complaint for failure to state a claim. It reasoned that Complainant was a volunteer, not an employee. On May 22, 2013, Complainant signed a "Volunteer Services Agreement for Natural Resources Agencies." In the form, the site name/project leader was identified as "HIPPNET...," and a field labeled "agency" was filled in with "EPSCOR-ENDER."3 Under description of service, it read "Work in HIPPNET Plots and related activities." The form read in part "I understand that I will not receive any compensation for the above service and that volunteers are NOT considered Federal employees for any purpose other than tort claims and injury compensation."
Complainant's first line Forest Service supervisor wrote he was the supervisor listed on her volunteer agreement with the Agency.
In the FAD, the Agency found that Complainant was subject to 16 U.S.C. � 558c, which governs the employment status of Forest Service volunteers. Section 558c(a) reads:
Federal employee status
Except as otherwise provided in this section, a volunteer shall not be deemed a Federal employee and shall not be subject to the provisions of law relating to Federal employment, including those relating to hours of work, rates of compensation, leave, unemployment compensation, and Federal employee benefits.
The listed exceptions in section 558c were for tort, work injury and damage to or loss of personal property claims. Pointing to the statute and the Volunteer Services Agreement for Natural Resources Agencies, the Agency found that Complainant was not an Agency employee.
In her complaint, Complainant wrote that she was hired as a professional intern on June 3, 2013, and was paid a monthly stipend. The EEO counselor relayed that Complainant's second line Forest Service supervisor said the stipend was paid by the "institution," not the Forest Service.
In its FAD, the Agency found that while the record showed Complainant possibly received a stipend during the duration of her internship, there was no indication that she received significant remuneration. The Agency, pointing to websites indicating HIPPNET was supported by the a National Science Foundation EPSoR grant, the Agency's Forest Service, the University of Hawaii, and a University of California, Los Angeles grant (as well as other possible entities), found that the record was unclear on the funding source for Complainant's alleged stipend.
ANALYSIS AND FINDINGS
Timeliness
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows she did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). It is the Commission's policy that constructive knowledge will be imputed to an employee when an employer has fulfilled its obligation of informing employees of their rights and obligations under EEOC's regulations. An example of such support are an affidavit by an EEO official stating that that there are unobstructed poster(s) with EEO information, including the 45 calendar day time limit to contact an EEO counselor posted in the facility where the Complainant worked and identifying the periods of posting. Hyatte v. Tennessee Valley Authority, EEOC Appeal No. 0120131511 (July 25, 2013).
Here, prior to the FAD, Complainant's first line Forest Service supervisor affirmed that as part of Complainant's volunteer experience at the Institute for Pacific Islands Forestry, she attended a mandatory "Right to Know" training (on June 3, 2013). He affirmed that in the volunteer and employee break-room/kitchen area, there was posted information about the 45 calendar day time limit since 2010. He affirmed that as part of her "Right to Know" training, Complainant was taken to the break room/kitchen area and shown this information, and she would have seen it whenever using this area. The record contains photographs showing that there were at least three bulletin boards in break room/kitchen area containing various posters and notices. On one bulletin board, under a banner entitled "Civil Rights," are two posters which recite the 45 day time limit and give contact information for doing so. The first line Forest Service supervisor also indicated that Complainant had a cubicle, and next to it were posters regarding the Forest Service's anti-harassment policy. In a picture he identified Complainant's cubicle and the nearby anti-harassment posters.
On appeal, Complainant counters that she was a field worker, and did not have a cubicle or eat lunch in the lunchroom. She argues that the 45 calendar day time limit should be extended because she made every effort to report the harassment to the proper authorities. She stated that on October 14, 2013, she reported her concerns to her field crew leader/supervisor, and he said he would talk to Complainant's first and second line Forest Service supervisors. The first line Forest Service supervisor identified the field crew leader/supervisor as Complainant's University of Hawaii supervisor. Complainant further writes that on January 2, 2014, she contacted Forest Service Employee Relations in Hawaii, who forwarded her to an Agency Employee Relations Specialist she spoke with on January 17, 2014. The latter person wrote he told Complainant he would look into her allegation. Complainant initiated EEO contact on February 4, 2014.
The first line Forest Service supervisor stated that Complainant was typically present at the Institute of Pacific Island Forestry from 7 AM to 7:15 AM before going to the field and from 5 PM to 5:15 PM after returning therefrom. According to the supervisor, he told Intern 1 to stay away from the Institute early in the morning and the late afternoon. While the first line Forest Service supervisor stated that Complainant was assigned a cubicle, Complainant writes she did not use it.
There is insufficient information in the record for us to make a decision on whether Complainant had constructive notice of the 45 calendar day time limit to initiate EEO counseling. As an initial matter, Complainant has not shown that prior to February 4, 2013, she contacted anyone logically connected with the EEO process. While she took "Right to Know" training on June 3, 2013, and part of this was being taken into the breakroom/kitchen to show her the EEO information posted, which included the 45-day time limit, we find that this, without more, does not show she had constructive knowledge thereof. The breakroom/kitchen area had at least three bulletin boards filled with postings and notices. Simply pointing out the bulletin boards, without more, would be insufficient to impute Complainant with constructive knowledge of the 45 day time limit. More would include specifically pointing out or discussing the 45 calendar day time limit, or information that the breakroom/kitchen area posters were visible to passersby and Complainant would have passed by for a period of time either during an orientation period or when she daily came to the Institute of Pacific Island Forestry before and after going to the field. The first line Forest Service supervisor's statement that Complainant had a cubicle perhaps suggests Complainant had more of a connection to the Institute of Pacific Island Forestry building than she indicates on appeal, but we have insufficient information on this. On remand, we will direct the Agency to gather relevant information.
Unclear Internship Arrangements
As will be further clarified below, to make a determination on whether Complainant was a Forest Service volunteer or the Forest Service jointly employed Complainant, the internship arrangements need to be better explained. On remand, the Agency shall gather information on the following: When Complainant's internship began (not just when she started serving the Forest Service), whether it continued after she stopped serving the Forest Service, and if so, for how long. What service did Complainant provide to the Forest Service, and was her work (including field work) done on Forest Service property or property managed by the Forest Service. Complainant's first line Forest Service supervisor wrote that Complainant was under his supervision between June and October 2013, but also wrote Complainant was supervised by a University of Hawaii supervisor in the field. The nature of all this supervision needs to be clarified. Which organization approved Complainant's internship application and which organization issued her monthly stipend checks or electronic fund deposits, and the Forest Service's input into this, if any. Was Complainant paid an internship stipend before and/or after her service with the Forest Service, and what was the monthly amounts. Is the Institute of Pacific Island Forestry part of the Forest Service. What is the Forest Service role in HIPPNET, and the Institute of Pacific Island Forestry (if it is not part of the Forest Service) - meaning to what extent does the Forest Service control Complainant's internship arrangements and activities via its role in these organizations.
Volunteer or Employee
In EEOC Compliance Manuel Section 2, "Threshold Issues," No. 915.003, at 2-28 to 2-29 (July 21, 2005), the Commission advises that while volunteers usually are not protected "employees," an individual may be considered an employee of a particular entity if as a result of the volunteer service, she receives benefits such as a pension, group life insurance, and access to professional certification, even if the benefits are provided by a third party. The Commission advises that the benefits constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship." The Commission also advises that a volunteer may also be covered by EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity because in such situations, discrimination by the employer operates to deny the Complainant of an employment opportunity. Id.
Complainant wrote in her complaint that she received a monthly stipend of $2,000, significant remuneration. But the record does not show the extent to which this remuneration was tied to her service at the Forest Service. Above, we asked the Agency to gather information on her internship arrangements. Also, the Agency is directed to gather information on whether Complainant was able to move to another internship "volunteer" opportunity, and whether she was able to complete the requirements of the internship program.
On appeal, Complainant states that her stipend was increased from $1,500 to $2,000 while serving the Forest Service because she took a leadership role which required her to complete a Forest Service driver's education course that would provide her a Federal driver's license so she could drive Forest Service vehicles. The Agency should gather information on this. On appeal, Complainant submits an affidavit that while serving the Forest Service she was told she could remain in the position as long as she wanted and it could lead to a permanent position as a biological field tech if she was successful and worked hard. Complainant does not identify in which organization the permanent position would be located, which is highly relevant. On remand, we will direct the Agency to gather relevant information on this, as well as the other inquiries outlined above.
In its FAD, the Agency found that Complainant was a volunteer, as evidenced by her signing the Volunteer Services Agreement for Natural Resources Agencies, and 16 U.S.C. � 558c. But the Agency does not point to an applicable section of the statute which defines a volunteer, and given Complainant's stipend, the record at this point indicates that despite the agreement, she was an employee of some organization, but which one(s) has yet to be determined. On remand, the Agency shall gather facts on whether the Volunteer Services Agreement for Natural Resources Agencies included the Forest Service, and further identify the applicable definition of volunteer under the above statute, if any.
Another relevant line of inquiry is where Complainant was located when alleged harassment occurred in issues 1a, 1c and 1d - did it occur when she was located on Forest Service premises or property or property managed by the Forest Service? Further, the record should be developed on Intern 1's relationship with the Forest Service. Complainant v. Department of Defense (Office of the Secretary of Defense), EEOC Appeal No. 0120131331 (July 15, 2015)(whether alleged discrimination is attributable to the Agency or its personnel factored into application on the determination on whether it should be deemed an employer).
Joint Employment
Assuming the record reveals Complainant was not a volunteer with regard to the Forest Service, the next question is whether the Forest Service jointly employed Complainant.
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.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control the manner and means by which the work is accomplished.4
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in business.
12. The employer provides the worker with benefits such as insurance, leave or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes.
Id. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2.
On remand, the Agency shall gather information relevant to control factors listed above.
The FAD is REVERSED.
ORDER
The Agency is ordered to gather information as described in the body of this decision. In doing so, it should contact Complainant and others in a position to know, and gather any relevant documentation. Thereafter, the Agency shall either accept Complainant's complaint, or dismiss it with appeal rights to the EEOC, Office of Federal Operations. The Agency shall complete this action within 90 calendar days after this decision becomes final.5
A copy of the Agency's letter of acceptance of FAD shall be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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) 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
January 5, 2016
__________________
Date
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 While the Agency did not include this allegation, it was in her complaint. In her report, the EEO counselor relayed that Complainant's Agency supervisor said that Complainant was told she would be suspended with pay. It is not clear whether she was actually suspended, or exactly when this occurred.
3In its FAD and a Forest Service website the Agency indicated this acronym means "Experimental Program to Stimulate Competitive Research - Environmental Dynamics and Ecosystem Responses." A University of Hawaii website indicates EPSCoR is a program administered by the University of Hawaii System.
4 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). This factor is especially significant in termination cases.
5 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
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