01a45313
03-16-2006
_______________, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
____________ v. Department of the Army
01A45313
3-16-06
.
_______________,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A45313
Agency No. ARCAMPB04MAR037
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 28, 2004, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when:
On three separate occasions with the most recent incident occurring on
August 18, 2003, she applied for, and was not selected for a Licensed
Practical Nurse (LPN) contract position offered through Dyncorp Technical
Services LLC.
The agency dismissed the complaint on the grounds that the complaint
failed to state a claim.<1> The agency determined that complainant lacked
standing to bring a complaint of discrimination against the agency
as complainant was not an employee of the agency nor an applicant for
agency employment. Rather, the agency determined that the position for
which complainant applied and was not selected, was a contract position
with a private sector contractor, Dyncorp Technical Services.
On appeal, complainant argued that the selecting official for the
position at issue was an employee of the United States Armed Forces and
therefore she was an applicant for federal employment. In response, the
agency maintains that the position at issue was staffed and controlled
by Dyncorp.
Before the Commission can consider whether the agency has discriminated
against complainant in violation of Title VII, we must first determine
whether complainant was an agency employee or applicant for employment
within the meaning of Section 717(a) of Title VII of the Civil Rights Act
of 1964, an amended, 42 U.S.C. 2000e-16(a) et. seq. The Commission has
applied the common law of agency test to determine whether an individual
is an agency employee under Title VII. See Ma v. Department of Health and
Human Services, EEOC Appeal No. 01962390 (May 29,1998) (citing Nationwide
Mutual Insurance Co. v. Darden 503 U.S. 318, 323-24 (1992). Specifically,
the Commission will look to the following non-exhaustive list of factors:
(1) the extent of the employer's right to control the means and manner
of the worker's performance; (2) the kind of occupation, with reference
to whether the work usually is done by a specialist without supervision;
(3) the skill required in the particular occupation; (4) whether the
�employer� or the individual furnishes the equipment used and the place
of work; (5) the length of time the individual has worked; (6) the method
of payment, whether by time or by the job; (7) the manner in which the
work relationship is terminated, i.e., by one or both parties, with or
without notice and explanation; (8) whether annual leave is afforded; (9)
whether the work is an integral part of the business of the �employer�;
(10) whether the worker accumulates retirement benefits; (11) whether
the �employer� pays social security taxes; and (12) the intention of the
parties. See Ma v. Department of Health and Human Services, supra. In Ma,
the Commission noted that the common-law test contains, �no shorthand
formula or magic phrase that can be applied to find the answer...[A]ll
of the incidents of the relationship must be assessed and weighed with
no one factor being decisive.� Id.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(hereinafter Guidance), we also recognized that a �joint employment�
relationship may exist where both the agency and the �staffing firm�
may be deemed employers.<2> 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,� such as
Dyncorp, and the agency each maintain over complainant's work. 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 Ma criteria, whether or not the individual is on the
federal payroll. See Guidance, supra at 11.
Based on the legal standards and criteria set forth herein, we find that
the agency exercised sufficient control over the LPN position to qualify
as a joint employer with Dyncorp. In so finding, we note that the
agency controlled the selection process for the LPN position. Dyncorp
forwarded the resumes or applications of prospective candidates
to the agency and the agency approved or disapproved the candidates
identified by Dyncorp. The record contains e-mail correspondence from a
Dyncorp representative to an agency representative whereby the Dyncorp
representative identified complainant as a viable candidate for the LPN
position and forwarded a copy of complainant's resume. In response,
the agency representative expressed the agency's disapproval stating
that complainant's resume �shows clearly that she is NOT someone we
want and that [the Regimental Surgeon] does not believe a woman should
fill the position over a male.� This correspondence corroborates
Dyncorp's contention that its role in the selection process is limited
to �identifying potential candidates only� and that it does not �have
the authority to unilaterally employ any human resources [personnel]
without specific instruction and/or approval from the customer [the
agency].� Hence, contrary to the agency's contention, we find that
the agency, not Dyncorp, controlled the selection process by retaining
authority to accept or reject individuals identified by Dyncorp.
The record further reflects that the agency retained supervisory control
over the LPN position. The LPN was to be supervised by a Physician's
Assistant (PA) employed by Dyncorp and a Flight Surgeon employed by
the agency. The Flight Surgeon retained supervisory authority over
both the PA and the LPN. Hence, as the senior medical personnel, it is
reasonable to assume that the Flight Surgeon retained ultimate authority
and accountability for tasks assigned to, and work performed by, the PA
and LPN, and any other subordinate medical staff.<3> Furthermore, all
work performed by the LPN was performed on agency premises using agency
equipment and supplies. In sum, we find these factors sufficient to
sustain a finding that the agency exercised sufficient control over the
LPN to render it a joint employer, such that complainant may be deemed
an applicant for employment of the agency for the purpose of invoking
the protection of Title VII.
While the contract between Dyncorp and the agency identified the LPN as
�contract personnel� and specifically provided that �contract personnel
are employees of the contractor and under its administrative supervision
and control,� we did not find this language controlling given the nature
of the working relationship between the agency and Dyncorp. The nature of
the relationship was such that the agency retained authority to approve
the LPN �selected� by Dyncorp; and retained supervisory authority over
the LPN via the Flight Surgeon employed by the agency. Notwithstanding
the fact that Dyncorp provided wages, benefits and leave for the LPN,
the record before us nonetheless demonstrates that the agency retained
sufficient control over the LPN to qualify as a joint employer.
Accordingly, we find that complainant is an applicant for employment
with the agency, and that the agency improperly dismissed the instant
complaint on the grounds of failure to state a claim. We hereby reverse
that determination and remand the complaint to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
_____3-16-06_____________
Date
1 Prior to filing a complaint against the U.S. Army, complainant filed a
charge of discrimination against Dyncorp with the Kentucky Commission on
Human Rights. The Louisville Area Office of the EEOC however, dismissed
the charge finding that based on its investigation, it was unable
to conclude the Dyncorp violated Title VII in that Dyncorp provided
evidence that it forwarded complainant's application to the U.S. Army
for a hiring decision.
2 Contingent workers generally refer to workers who are outside an
employer's �core� work force, such as those whose jobs are structured to
last only a limited period of time, are sporadic, or differ in any way
from the norm of full-time, long term employment. Contingent workers
may be hired by �staffing firms� which may include a temporary employment
agency or a contract firm. See Guidance, supra at 1 & 3.
3 If the Flight Surgeon determined that the LPN's performance was
inadequate, it could so advise the LPN and request that corrective action
be taken. If the LPN's performance did not improve, the Flight Surgeon
retained the right to express concern to Dyncorp so that Dyncorp could
take appropriate action including counseling, retraining or replacing the
LPN. Declaration of Regiment Surgeon, U.S. Army. Hence, while Dyncorp may
have had ultimate responsibility for terminating the LPN's employment for
unsatisfactory performance, the agency retained authority to influence the
contractor's decision via the feedback given regarding that performance.