U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marine V,1
Complainant,
v.
Robert M. Lightfoot, Jr.,
Acting Administrator,
National Aeronautics and Space Administration
(Kennedy Space Center),
Agency.
Appeal No. 2019000184
Agency No. NCN-18-KSC-00034
DECISION
On August 23, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a Final Agency Decision (FAD) dated July 27, 2018,
dismissing her complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by a subcontractor
staffing firm on the Safety and Mission Assurance Support Services (SMASS) II contract that a
prime contractor staffing firm had with the Agency. She worked on the Independent Assessment
team serving the Agency as a Safety Engineer (Level B) at its Kennedy Space Center in Florida.
On April 19, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency discriminated against her based on her age (61) when, after the SMASS II contract
expired, she was not hired onto or otherwise assigned to the successor SMASS III contract,
resulting in her being laid off effective January 31, 2018.2
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 The Agency defined Complainant’s complaint only in terms of the layoff. We added more detail
to better capture her complaint.
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The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was
an employee of her staffing firm, not the Agency.
The instant appeal followed.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant’s complaint for
failure to state a claim on the basis that she was not its employee. 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 therewith.
In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016),
the Commission recently 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)3; 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.
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.
3 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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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. 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.
Complainant worked for various staffing firms serving the Agency at the Kennedy Space Center
for 33 years. In late May 2017, she started with a new staffing firm on the SMASS II contract
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serving the Agency as a Safety Engineer (Level B). The SMASS II contract expired on or about
January 31, 2018. When she took a job on the SMASS II contract, Complainant expected to
continue on a successor contract.
On January 4, 2018, the prime contractor staffing firm emailed all personnel on the SMASS II
contract, including Complainant, that it was given the go ahead by the Agency to transition to the
SMASS III contract. The prime wrote that it desired all current SMASS II personnel to continue
supporting the Agency on the SMASS III contract, and invited them to submit their employment
applications to the prime, unless they already were employed by the prime or another identified
subcontractor (which was continuing to serve the Agency on the SMASS III contract, unlike
Complainant’s subcontractor staffing firm). Complainant wrote that she timely applied on January
5, 2018. Complaint file, at 21. However, she was later notified that she had not been selected.
Complainant contended as follows. On January 16, 2018, her lead on the Independent Assessment
team who worked for the same subcontractor staffing firm as she, held a team meeting advising
that he just learned two of the five team positions were going to be downgraded to “college entry
level/fresh-outs,” that “fresh ideas” were wanted, and team members could not apply for the
downgraded positions. In the end, the prime offered positions to three of the five members on the
team, including the lead, but not to Complainant. On January 17, 2018, she asked the prime’s
Deputy Program Manager for SMASS II why she was not selected. He responded that the Agency
told him that Complainant was going to be laid off and two positions on her team for the SMASS
III contract were going to be downgraded to college entry level/fresh outs. On January 18, 2018,
Complainant asked the prime’s Program Manager for SMASS II why she was not selected, and he
corroborated some of this. On January 18, 2018, the prime posted the positon of “Safety Mission
Assurance Engineer (Entry Level)” (multiple slots), the successor to her position.
In its FAD, the Agency indicated that Complainant was not an “independent contractor” – rather,
she was an employee of the subcontractor staffing firm.4 In holding that it did not have sufficient
control over Complainant’s position to also be considered her common law joint employer, the
Agency found that its management had no role in recruitment and staffing, that based on the
contract her subcontractor staffing firm was primarily responsible for assigning her duties, that her
subcontractor team lead did her appraisal, and her daily supervision was provided by her
subcontractor staffing firm. The Agency found that it did not control Complainant’s schedule and
had no authority to approve or disapprove leave requests.
4 Given this, some of the common law employment control factors the EEO counselor inquired
about and/or were analyzed in the FAD are not relevant since they do not shed light on whether
the Agency jointly employed Complainant under common law, i.e., whether Complainant’s work
requires a high level of expertise, was she engaged in her own distinct business or occupation, did
she have a role in hiring or paying assistants, is she paid hourly, weekly or monthly, or by an
agreed cost to do a task, are her duties part of the regular business of the Agency, and did the
Agency believe it created an employment relationship with Complainant.
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On appeal, Complainant submits a spreadsheet that she both represents was authored by the
Agency and evidences it made the decision to lower her successor position to college entry level.
Complainant contends her team reported to the Agency and it assigned the work. She writes they
prepared game plans for their assignments, which were discussed, reviewed and approved by the
Agency managers prior to starting work, they provided weekly status of their assignments to the
Agency, they had face-to-face meetings with Agency staff, and their final presentations were dry-
run, reviewed, and commented upon by Agency personnel. She asserts that neither the prime nor
her subcontractor staffing firm had any influence over their assignments, were not involved in
them, or attended the above meetings.
For purposes of determining whether Complainant’s complaint states a claim only (we are not
making any determinations on the merits), we find that the Agency jointly employed Complainant.
The Agency asserts that it is not involved in decisions to hire and fire. Complainant countered that
the prime’s Deputy Program Manager for the SMASS II contract advised her that the Agency told
him Complainant would be laid off, and that the Agency was downgrading two positions on her
team on the SMASS III contract to college entry level/fresh-outs. She reiterates that at a team
meeting, her subcontractor staffing firm lead said that fresh ideas were wanted and team members
could not apply for the positions that were going to be downgraded to entry level, and clarifies on
appeal that this came from the Agency’s wishes.
Complainant’s contends that the Agency told her subcontractor staffing firm that Complainant
would be laid off, and that it was looking for fresh ideas. She contends that it was the Agency that
decided her SMASS II contract position would be downgraded to an entry level position on the
SMASS III contract, and that she and others on her SMASS II team could not apply for the
downgraded positions. Because Complainant’s complaint is about her being laid off after not being
able to secure a position on the SMASS III contract, the Agency’s alleged ability to control or
partially control these aspects of her employment is especially significant. Further, Complainant
served the Agency for 33 years, a very long duration, and worked on Agency premises using
Agency equipment.
Based on the legal standards and criteria set forth in our previous decisions and guidance, we find
that the Agency possessed sufficient control over Complainant’s position to qualify as her joint
employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et
seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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.
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As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.5
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
5 On appeal, Complainant writes that she believes it is possible that she was also discriminated
against based on her disability (cancer). On remand, the Agency shall inquire Complainant, in
writing, whether she wishes the basis of disability to also be investigated, and include this inquiry
letter in its compliance package for the Compliance Officer.
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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 (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
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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
February 8, 2019
Date
