Joanna G.v.Dep’t of the Navy

Equal Employment Opportunity Commission

Oct 30, 2019

EEOC Appeal No 2019003599 (E.E.O.C. Oct. 30, 2019)

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

Joanna G.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 2019003599

Agency No. 19-00024-02015

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated May 9, 2019, dismissing a formal 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

Complainant was employed as a Cyber Analyst for Alion Science and Technology (hereinafter
“Alion”), which contracted with the Agency to provide cyber security services. Complainant was
assigned to the Agency’s Naval Systems Command (NAVSEA) at the Washington Navy Yard, in
Washington, D.C.

Believing that she was subjected to a hostile work environment from August 2018 through May
2019, Complainant contacted an Agency EEO Counselor. Informal efforts to resolve
Complainant’s concerns were unsuccessful. On April 4, 2019, Complainant filed a formal
complaint based on sex, religion (“Born Again Christian”/Protestant), age, and disability (Post
Traumatic Stress Disorder).

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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The Agency, in its decision, characterized the following allegations as the substance of
Complainant’s hostile work environment claim:

a. The [Agency’s Cyber Assistant Program Manager and Assistant Program Manager,
as well as the Alion supervisor] planned Complainant’s termination from Alion.

b. The [Agency’s Cyber Assistant Program Manager] harassed Complainant when he:
(1) On May 1, 2019, yelled at her with regards to a tasker.
(2) On April 29, 2019, told her “I don’t want anyone to come by my desk.
I’m busy I don’t have time for it today.”
(3) On April 16, 2019, denied her a reasonable accommodation.
(4) On April 4, 2019, berated and publicly humiliated her during an
informal meeting.
(5) On March 28, 2019, November 2018, and September 2018, denied her
Risk Management Framework training.
(6) On March 4, 2019, berated and slammed his hands onto a conference
room table in a private meeting.
(7) On March 1, 2019, yelled at her in his cubicle space, stating “God damn
it [Complainant].”
(8) On or around March 2019, removed her from the on-site visit calendar.

c. Alion subjected Complainant to reprisal when it:
(1) On April 30, 2019, changed her responsibilities.
(2) On March 5, 2019, reprimanded her via email.

d. The [Agency’s Assistant Program Manager] harassed her based on race (Black),
when:
(1) On March 20, 2019, he expressed in a negative tone and gave a negative
look when he said, “you guys are being too loud”.
(2) On March 15, 2019, colluded with [Alion supervisor] when [Alion
supervisor] turned his chair in [Agency’s Assistant Program Manager]
cubicle and faced toward her in her cubicle to intimidate her.
(3) On March 14, 2019, tried to intimidate her by sitting next to her in a
secure space.
(4) On March 13, 2019, tried to intimidate her while he was visiting a secure
space.
(5) On February 22, 2019, accused her of “fucking off” during her lunch.

e. The [Alion supervisor] harassed her on March 6, 2019, when he invited her to a
private area and asked her to reconsider filing her EEO complaint.

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f. The [Agency’s Director Information Management], harassed Complainant, on
March 4, 2019, when he required her to sit in a broken chair during a meeting with
the [Agency Cyber Assistance Program Manager] and four male contractors
proceeded to interrogate her regarding a conflict between her and a [contractor from
another company].

In its May 9, 2019 decision, the Agency dismissed the formal complaint, finding that Complainant
was not an Agency employee. In making its determination, the Agency considered various factors.
The Agency acknowledged that, along with Alion, the Agency provides computers and office
space, as well as access to Agency networks. The Agency maintains, however, that most other
factors indicate Alion is Complainant’s sole employer. Alion had the ability to change its staff, set
the work hours, provided pay and benefits, and was in the cybersecurity business. Complainant’s
immediate supervisor was an Alion employee.

Complainant filed the instant appeal.

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)2; 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).

2 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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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. 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.

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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. 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, the record reflects that Complainant worked at the Agency’s Navy Yard. Her
immediate supervisor was an Alion employee. Additionally, an Alion Office Manager was also
onsite. Complainant does not dispute that her pay, benefits, and tax withholdings were provided
by Alion. We do note that the Cyber Assistance Program Manager (hereinafter “Cyber PM”), an
Agency employee, was identified by Complainant as responsible for some of the harassment. It
does appear that the Cyber PM may have instructed or assigned tasks to Complainant.

However, the relatively short length of the work relationship (months), as well as the intent of the
parties, indicate Complainant was the employee of Alion. Not only does Agency management
identify the relationship as one of client (Agency) and contractor (Complainant), but Complainant
does as well. On appeal, Complainant expressly states the following: “I did not state that I was an
employee of the Federal Government when I attempted to file my EEO complaint.” When she
contacted the EEO office, she ‘explained that I was an Alion . . . employee.” In fact, Complainant
argues that “since I stated repeatedly that I was an Alion Science and Technology employee, I
should have been directed to the EEOC and [the Agency] should have informed me of that option
before wasting time by processing my claim though they knew that I was not a[n] [Agency]
employee.” While arguing that Cyber PM influenced her dismissal, she contends that Cyber PM
was never “any more than my task lead”, that he was not her supervisor.

Therefore, based on the instant record, we find that the Agency’s final decision to dismiss the
complaint for failure to state a claim was proper.
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CONCLUSION

For the reasons discussed above, the Agency’s final decision dismissing the instant formal
complaint is AFFIRMED.

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).
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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 (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