0120132131
05-20-2014
Complainant, v. John Kerry, Secretary, Department of State, Agency.
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120132131
Agency No. DOS-F-039-13
DECISION
On May 6, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 9, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for Pitney Bowes Government Solutions, Inc., serving the Agency as an Electronic Mechanical Technician II at its State Annex 32 in Sterling, Virginia.
Complainant filed a formal complaint dated December 13, 2012, alleging that the Agency discriminated against him based on his race (African-American) and reprisal for prior protected EEO activity under Title VII when from October 12, 2012 through October 18, 2012, the Agency harassed him when it put severe pressure on him to pouch oversized mail, something not within his duties.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was not an employee of the Agency.
Complainant served at State Annex 32 for approximately eight years. One of his co-workers (Co-worker 1), who in accord with Complainant referred to himself as Complainant's assistant, served there for approximately two years, and was an Electronic Mechanical Technician I. Complainant referred to the both of them as the technical team, and they maintained equipment. Their direct supervisor was an on-site Project Manager, a Pitney Bowes employee.
Complainant contends that daily on workdays (weekdays) from October 12, 2012 through October 18, 2012, his direct supervisor, at the behest of the Branch Chief, an Agency employee, told them that one or both of them had to help pouch oversize mail, and they both objected daily. He wrote that they objected by refusing to pouch oversized mail on the grounds that it was not within the scope of their duties, repeatedly asking that the instruction to do so be put in writing (it never was), and asking if other mechanics were being asked to work in the oversize pouch section. Complainant wrote that his direct supervisor pressured him and Co-worker 1 by telling them each workday to help pouch oversize mail, by saying that the Branch Chief can ask them to do anything he wants, by relating that the Branch Chief said if they had time to talk to people at their desk they could help pouch oversized mail, by saying that if there is work to be done to stay busy, and by saying the Branch Chief was moving aggressively to have his request met. Complainant contended that when on October 18, 2012, the Project Manager told him and Co-worker 1 that one of them would have to pouch mail or else, Co-worker 1 immediately resigned.
Complainant wrote that on or about October 15, 2013, the technical team filed a grievance with the Pitney Bowes Regional Manager; the Pitney Bowes head of human resources; and the Agency's Director, Diplomatic Pouch and Mail, the Agency's Contracting Officer's Representative (COR). Complainant wrote that the next day, the Pitney Bowes Regional Manager told the technical team to continue doing their jobs within the scope of their work (meaning no mail pouch work).
The COR stated that at the three sites where Pitney Bowes workers are located they are indirectly supervised by on-site Agency supervisors. He wrote that the government tracks timeliness, Agency policies, customer requirements, and the overall quality of service, and Pitney Bowes is responsible for ensuring the mission is accomplished, for human resources, for time and attendance, and for management issues, and there is some overlaps. The COR stated that the day to day assignments for workers are handled by Pitney Bowes, and each site has a Pitney Bowes site manager that provides a plan to accomplish this task. He wrote that each site manager reports to an area manager, who works closely with him, and each site also has a government technical monitor who oversees the technical aspects of what is required and works with the Pitney Bowes site manager to accomplish the mission.
The COR stated that per "Acquisitions," the Branch Chief is not to task individual Pitney Bowes workers with assignments, but conveys assignments/tasks to the Pitney Bowes site manager. The COR wrote that if a task goes against the typical duties of a worker, the Branch Chief and site manager should bring it up to him and Pitney Bowes upper management to resolve.
According to the counselor's report, the following occurred: Complainant said that when the Project Manager asked him and Co-worker 1 to assist in pouching mail because of a backlog, he was surprised because he never had been asked to do this in his eight years working at the facility. The Branch Manager related that he requested the Project Manager to ask Complainant and Co-worker 1 to assist in the pouch room. The Project Manager related that the Branch Manager asked him to have one of the technicians help with pouching, and the technicians felt their duty was to fix machines, not pouch mail. The Project Manager said he was just following orders received from the Branch Manager.
On appeal, Complainant contends that the technical team was supervised by the Project Manager with all direction by the Branch Chief, and he was not allowed to make any decisions without the Branch Chief's approval. Complainant contends that in practice the Branch Chief gave specific direction of what he wanted done and who was to do it, as evidenced by an email. This refers to an October 11, 2012, email from the Branch Chief to the Project Manager that he needed Complainant and his Co-worker 1 to document all scheduled maintenance performed by the technical team each week and month, and to ensure they document all planned maintenance by equipment serial number, and he needed this done by the next week.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. 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 when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or 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 (i.e., the employer withholds federal, state, and Social Security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
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 (Pitney Bowes) and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 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.
Factors 3 - 5, 7, 9, and Indicate that Complainant May be a Joint Employee of the Agency
Complainant works on Agency premises and it provides the tools, material and equipment needed for him to perform his duties (factors 3, 4). As of the time of his complaint, Complainant served the Agency for about eight years, a continuing relationship (factor 5). The contract between the Agency and Pitney Bowes indicates that Pitney Bowes will perform services between 7 AM and 4 PM on weekdays, excluding government holidays (factor 7). Complainant does not hire or pay assistants, and is not engaged in his own business (factors 9, 11).
Factors 1 - 2, 6 - 8, 10 - 13, and 15 Indicate that Complainant is not a Joint Employee of the Agency
Complainant receives his assignments from his direct supervisor, the Project Manager, a Pitney Bowes employee. Because Complainant's complaint is about being discriminatorily told to perform pouch mail duties, the most important factor in this case is whether the Agency has the right to assign Complainant work, which involves factors 1 and 6. While Complainant's direct supervisor believed that the Agency had the right to assign work to Complainant through him, as evidenced by his saying he followed the Branch Manager's orders, when Complainant protested and refused to accept the mail pouch assignment, the Pitney Bowes Regional Manager backed Complainant up on the matter and Complainant prevailed - he did not pouch mail, and he does not contend he was asked to do so after October 18, 2012. This weighs in favor of a finding that the Agency did not have the right to assign Complainant additional projects. Complainant points to an email where the Branch Chief directed Complainant's direct supervisor to have Complainant and Co-worker 1 document their scheduled maintenance by the next week. The purpose of this was to help make decisions on the new contract, and estimate how much repair maintenance is done over a given period of time. While we concede that in effect the Branch Chief gave this assignment to Complainant and Co-worker 1, we note that the task was given to Complainant's direct supervisor to assign, Complainant does not give any other specific examples, and the record does not show that the Agency got into the details of supervising how Complainant maintained equipment. Given this, we find the weight of the evidence is that factors 1 and 6 does not point in the direction of the Agency being Complainant's joint employer.
Complainant's work requires a high degree of skill or expertise (factor 2). His job, maintaining equipment, is a support function, not the mission of the Agency, which is diplomacy. Complainant's compensation, benefits, and leave are provided by Pitney Bowes (factors 8, 12, 13). The Agency believed that it was creating a contractor relationship (factor 15).
Factor 14 does not point in any direction because the record does not reflect whether the Agency had de facto or de jure authority to terminate Complainant.
Based on the legal standards and criteria set forth herein, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as his joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 20, 2014
__________________
Date
2
0120132131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120132131