Archie D.v.Tenn. Valley Auth.

Equal Employment Opportunity Commission

Oct 30, 2019

EEOC Appeal No. 2019003604 (E.E.O.C. Oct. 30, 2019)

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

Archie D.,1
Complainant,

v.

Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 2019003604

Hearing No. 490-2017-00049X

Agency No. TVA-2014-0089

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated April 9, 2019, dismissing his 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. § 1614.405.

BACKGROUND

Complainant applied and was offered a position as an Armed Security Officer with Murray Guard,
Incorporated (hereinafter “Murray”). Murray contracted with the Agency to provide
approximately 160 to 180 security officers to supplement the Agency police force in approximately
nineteen facilities. A Murray supervisor was assigned to each facility to oversee Murray security
officers. Additionally, a Murray Account Manager was responsible for the Murray supervisors, as
well as managing the Agency account generally.

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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According to Complainant he was hired by Murray specifically to fulfill the Agency contract.
Complainant had to complete numerous hours of computer training, over several days, to meet the
Agency’s hiring requirements.

Days after being hired, on January 4, 2014, Complaint was assigned to the Agency’s Raccoon
Mountain site. Approximately two months later, Complainant was removed from the Raccoon
Mountain site assignment. Complainant was told that the site was closing. Complainant later
learned, however, that the site did not close, and he was replaced at Raccoon Mountain with a
younger, Caucasian female. Complainant reported the alleged discrimination to the Murray
General Manager, and soon thereafter Murray Human Resources personnel contacted him and
offered him an assignment at the Agency’s Widow’s Creek facility. Complainant began working
at Widow’s Creek on April 16, 2014.

While his assignment at Widow’s Creek did not require a “sensitive security clearance”,
Complainant sought a clearance in the event a position became available in Chattanooga,
Tennessee, a location closer to his residence. Relying upon information from Murray that the
Agency was exclusively responsible for processing clearance applications, Complainant emailed
an Agency official to request an application. In its response, the Agency merely observed that
such clearance was not necessary for Complainant’s current assignment at Widow’s Creek. When
Complainant clarified that he desired the clearance for a potential future assignment at the Agency
Chattanooga Office Complex, the Agency did not reply.

On May 15, 2014, a supervisory position became available at the Chattanooga site. Complainant
applied, but was not selected. According to Complainant, the Murray General Manager explained
that he could not be given the assignment because of his “run-in with Agency police” and his lack
of a sensitive security clearance.

In early June 2014, Complainant believed his Murray Supervisor (hereinafter “Supervisor-S”) was
subjecting him to a hostile work environment based on race. Complainant informed the Murray
General Manager and the Agency’s account manager. Complainant explained that he was “not
comfortable working along-side [Supervisor-S] because of his genuine dislike [of] African-
Americans.” He asked to be transferred to Chattanooga.

In a September 8, 2014 email to Murray, the Agency’s Manager-Field Operations, TVA Police
and Emergency Management (hereinafter “Agency Manager”) stated that while “not meant to
impact his employment with [Murray] . . . would prefer [Complainant] not be assigned to a TVA
facility.”

The Murray General Manager informed Complainant, on September 10, 2014, that Agency was
not going to grant Complainant a sensitive security clearance. Further, he was informed that he
would be terminated from Murray as of October 2, 2015.

Believing that Murray and Agency officials conspired together to discriminate against him,
Complainant contacted an EEO Counselor.
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Informal efforts to resolve Complainant’s concerns were unsuccessful. On January 20, 2015,
Complainant filed a formal complaint based on race, age, and reprisal for prior protected EEO
activity. The Agency framed the claims as follows:

1. on or about February 2014, Complainant was removed from his Agency
assignment at Racoon Mountain and was replaced by a younger Caucasian
female;

2. on or about May 7, 2014, Complainant was denied the right to complete
sensitive security clearance documents;

3. on or about May 8, 2014, an Agency representative ignored Complainant’s
email regarding Complainant obtaining an application for a sensitive
security clearance;

4. on or about May 22, 2014, Complainant obtained knowledge that he was
not selected for a supervisor’s position at the Agency;

5. on or about June 4, 2014, Complainant was subjected to harassment and
racially offensive statements by a co-worker;

6. on or about September 10, 2014, Agency did not grant Complainant a
sensitive security clearance and he received notification that he would be
laid off from his position on October 2, 2014;

7. on or about October 2, 2014, Complainant was laid off from his Agency
assignment; and

8. on or about October 28, 2014, Complainant obtained knowledge that his
sensitive security clearance application was discontinued.

On October 5, 2016, the Agency dismissed some claims for failure to state a claim. In particular,
claims (1), (2), (4), (5) and (7) were found to involve Murray employees, not Agency employees.
Moreover, the Agency concluded that Complainant was not an applicant or employee of the
Agency and therefore lacked standing. The Agency reasoned that Murray paid Complainant’s
salary and benefits, provided the tools and resources for his position, created the daily work
schedule, and made the final decision to terminate Complainant. Additionally, the Agency noted
that Complainant had already filed a civil action, against Murray, in the Chancery Court of
Hamilton County, Tennessee, regarding the allegations set forth in the dismissed claims.

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Irrespective of its determination that Complainant was not an Agency applicant or employee, the
Agency continued to process claims (3), (6), and (8).2 At the conclusion of the investigation, the
Agency provided Complainant with a copy of the report of investigation and notice of his right to
request a hearing before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Complainant requested a hearing. On March 20, 2019, the AJ issued a decision dismissing
the complaint.

As noted above, the three claims pending before the AJ concerned the Agency’s actions with
respect to Complainant’s efforts to obtain a sensitive security clearance (i.e. obtaining information
about an application, the discontinued processing his application, and the denial of a clearance).
In reviewing the claims, the AJ noted it is beyond the Commission’s jurisdiction to review of the
validity of a security clearance requirement or the substance of a security clearance determination.
However, in the instant case, the AJ found that Complainant had sufficiently alleged that he
suffered adverse actions subsequent to the denial and that “this matter is not purely related to a
security clearance issue.” Before considering whether Complainant was subjected to disparate
treatment related to the security clearance issue, the AJ reflected upon Complainant’s employment
status.

The AJ observed that Complainant applied to a position with Murray, not the Agency. Murray
hired Complainant and provided him with his facility assignments. It was Murray that removed
him from Raccoon Mountain and later assigned him to Widow’s Creek. Complainant himself
referred to himself as a contractor, an employee of Murray. He also admitted that all instructions
came from Murray and not directly from the Agency. While acknowledging that in response to
the report of investigation, Complainant asserted that he was supervised by the Agency’s
Supervisor of TVA Police Training and Contract Security Service Manager, the AJ was not
persuaded. Complainant’s belief that his Murray supervisors were “directed and controlled by
TVA,” yet uncertain how that process worked, similarly failed to sway the AJ.

Even after considering the September 8, 2014 email from Agency Manager, which only preceded
the notification of Complainant’s lay-off by days, the AJ concluded that “based on all the
circumstances in the relationship between the parties, TVA lacked the means and control sufficient
to qualify as Complainant’s employer.” The AJ found that because Complainant was not an
Agency employee or applicant3 the entire complaint was dismissed.

On April 9, 2019, the Agency issued a decision fully implementing the AJ’s decision.
Complainant filed the instant appeal.

2 Although the Agency re-numbered the accepted claims as (1), (2), and (3), we shall maintain the
original numbering for clarity.
3 The AJ stated that the supervisory position Complainant applied to was with Murray, not the
Agency.
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ANALYSIS AND FINDINGS

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. 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)4; 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). These elements are 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.

4 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 assessing the right to control, EEOC does not consider any one factor to be decisive and
emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that
an individual performs work pursuant to a contract between the federal government and an outside
organization and is paid and provided with benefits by that organization, on its own, is not enough
to show that joint employment does not exist. Rather, the analysis is holistic. All the circumstances
in the individual’s relationship with the agency should be considered to determine if the agency
should be deemed the worker’s joint employer.
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Enforcement Guidance, “Coverage Issues,” at Qs. 1 and 2. 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.

In the instant case, we must first note the Agency’s error in dismissing some claims of the
complaint, on October 5, 2016, on the grounds that Complainant was not an Agency employee or
applicant. The record clearly reflects that Complainant raised all claims in the Agency’s EEO
process based on his belief that the Agency, in conjunction with Murray, discriminated against
him. Further, regarding the issue of standing, Complainant’s ability to use the EEO process,
applies to the entire complaint. By erroneously dismissing part of the complaint in October 2016
and the remainder in April 2019, for the same reason (i.e. Complainant was not an Agency
employee or applicant), the Agency has caused unnecessary delay and misuse of resources.

The record reflects that Complainant applied for a position with Murray to fulfill its contract with
the Agency. Murray decided where to assign Complainant, first at the Agency’s Raccoon
Mountain, then to a non-Agency assignment, and later to the Agency’s Widow’s Creek facility. It
was a Murray supervisor whom Complainant alleged was creating a hostile work environment.
When Complainant reported the behavior, he did so to a Murray official and signed the
correspondence as “TVA Contract Security Officer”. Similarly, other documents in the record,
including the formal complaint, illustrate that Complainant considered himself to be a contractor.
While Complainant contends vaguely that Murray supervisors were directed and controlled by the
Agency, he does not dispute that he was not directly supervised by Agency employees. Further,
in order to obtain a sensitive security clearance, as a Murray employee, Complainant could not
directly apply with the Agency. Instead, Murray had to make the request on his behalf.5 We agree
with the AJ, that although the Agency Manager’s email, requesting Complainant no longer be
assigned to Agency facilities, was closely followed by Murray’s announcement to Complainant
that he would be laid-off6, this factor alone does not outweigh the other circumstances which reflect
a contractor/client relationship.

Therefore, we find that the AJ’s decision to dismiss the formal complaint was proper.

CONCLUSION

The Agency’s decision to fully implement the AJ’s dismissal is AFFIRMED.

5 Contrastingly, an Agency employee merely required his or her manager to submit a request and
justification which was then reviewed by the Agency’s Access Services.

6 An internal Murray document, dated May 5, 2014, stated that reductions of approximately 20%
would be occurring with their Agency assignments.
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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 (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.

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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

October 30, 2019
Date