U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dean T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2023000463 Hearing No. 510-2020-00352X Agency No. HS-FEMA-02349-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 30, 2022, dismissing his complaint alleging 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. BACKGROUND During the period at issue, September 2018 from until June 2019, Complainant worked as a Lean Sigma Six (LSS) Master Black Belt (MBB) Consultant for the Continuous Improvement Process (CIP) Program at the Agency’s facility in Guaynabo, Puerto Rico, as part of the Agency’s response to Hurricane Maria. Complainant was placed in this position in mid-2018 by a private entity holding a contract (the “LSS contract”) with the Agency identified as A Total Consulting 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 2023000463 Service (ATCS) PLC, and its subcontractors, the CPI Group and NoMuda, Inc.2 In April 2022, Complainant filed an individual EEO complaint alleging the Agency subjected him to discrimination on the bases of race (Caucasian), color (White), sex (male), age (over 50), and in reprisal for protected activity (reporting the Agency’s contract representatives to its Office of Inspector General) when: 1. From August 1, 2018, until April 2019, Agency management delayed Complainant’s team in piloting the Digital Site Inspection Tool (“DSI”); 2. From August 2018, until May 2019, management thwarted Complainant’s team in their attempts to correct the Statement of Work (“SOW”); 3. On two occasions between September 15, 2018, and October 15, 2018, the CIP Manager told Complainant’s team they were being paid too much; 4. On September 19, 2018, “M1” repeatedly directed Complainant’s team to re-enter their Objectives and Key Results (OKRs) into MAX TRAX on four separate occasions; 5. On September 30, 2018, “M1” reprimanded Complainant and his team for not providing a list of the people that had attended the Lean Six Sigma (LSS) Awareness Training to the Training Directorate; 6. In September 2018 through June 2019, management provided Complainant and his team with ambiguous guidance regarding reporting requirements and format; 7. From September 2018 through November 2018, FEMA management failed to supply Complainant and his team with the required software to complete their mission; 8. In October 2018, “M1” and a Program Analyst, Continuous Improvement Process (CIP) (“M2”) reprimanded Complainant’s team for acting without explicit approval; 9. In October 2018, Complainant and his team were reprimanded for providing a Champions’ Training attendee list that was out of date; 10. From October 1, 2018, through March 30, 2019, Complainant and his team were required to make over a dozen minor/insignificant modifications to reporting requirements for CIP and FEMA leadership; 11. From October 7, 2018 to October 15, 2018, “M1” failed to notify Complainant and his team members of issues with documentation and instead brought the issues directly to the attention of FEMA management and the prime contracting company; 2 In July 2019, the Agency chose not to renew its contract with ATCS. 3 2023000463 12. On October 9, 2018, “M1” made a sarcastic comment just prior to one of Complainant’s teammates joining the team, when he remarked how lucky FEMA was to bring on an LSS contractor from a failing company; 13. On October 12, 2018, “M1” informed Complainant’s team that they were off track and not meeting his expectations regarding the Integrated Work Status Database project; 14. On October 12, 2018, “M1” informed Complainant’s team that it was not in their best interest to utilize the Federal Coordinating Officer’s (FCO) open-door policy and that all information would need to be filtered through him; 15. On October 15, 2018, and other unspecified dates, “M1” ordered other employees to spy on Complainant’s team and document and report minor infractions; 16. On October 15, 2018, Complainant’s team was reprimanded during a meeting for not having an updated call down list; 17. On October 21, 2018, and other unspecified dates, “M1” and “M2” precluded Complainant and his team from forming an LSS Steering Committee; 18. On or around October 22, 2018, the Agency took several months before it granted Complainant’s request for a larger monitor to accommodate his vision problems; 19. On October 28, 2018, “M1” wrote a report chastising Complainant’s team and threatened to terminate their contract if the delivery of training materials and corrective actions were not completed within a month; 20. On November 1, 2018, and other unspecified dates, “M1” made several derogatory remarks about Complainant’s team; 21. On April 1, 2019, “M2” reprimanded Complainant and his team and reported them to the COTR for not having a member from CIP present when interacting with leadership; 22. On April 8, 2019, the FCO’s Executive Assistant failed to deliver a private letter written by Complainant and his team members to the FCO; 23. On April 22, 2019, “M2” ordered Complainant and his team not to use the Puerto Rican Call Center (PRCC) for team meetings because she wanted to see them at their workspace; 24. On May 1, 2019, Complainant and his team were informed that “M2” had made multiple disparaging remarks about them while speaking Spanish; 4 2023000463 25. On serval occasions, including May 15, 2019, Complainant and his team were informed that “M2” repeatedly referred to them as “the old white guys;” and 26. On June 15, 2019, management terminated Complainant’s contract.3 On June 14, 2022, Complainant also filed a lawsuit in United States District Court naming the prime contractor (ATCS) and its subcontractor as defendants. In that lawsuit, Complainant alleged that ATCS and its subcontractor had been his employers from October 2018 until his June 2019 termination, and had subjected him to retaliation for protected whistleblower activity. Complainant’s civil action did not name the Agency as a defendant or as his employer. On September 30, 2022, the Agency procedurally dismissed Complainant’s individual formal complaint for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). The Agency reasoned that Complainant had been a subcontractor of ATCS as opposed to an Agency employee. The instant appeal followed. On appeal, in sum, Complainant maintains that the Agency had acted as a joint employer throughout Complainant’s work on the LSS contract because Agency employees controlled, supervised, and ultimately decided to terminate his employment on the LSS contract. Complainant further accused an Agency supervisor of attempting to coerce him and other consultants to give her LSS certification despite her difficulties in meeting LSS training standards. Thereafter, Complainant claimed that this Agency supervisor had directed a “secret survey” of Agency employees who had received LSS certification training that was designed to generate negative feedback about Complainant and the other consultants, who she had referred to as “those old white guys.” Also, according to Complainant, the Chief of Staff for the Agency operation in Puerto Rico had ordered him to make changes to LSS training materials to conform to Agency culture. In its response opposing Complainant’s appeal, the Agency denied that it was his joint-employer, and, in the alternative, the Agency argued that Complainant’s formal EEO complaint should be dismissed for untimely EEO Counselor contact.4 3 Another consultant, purporting to represent a class consisting of himself and the other LSS consultants, including Complainant, filed a class complaint alleging discrimination in April 2020. However, on April 9, 2021, an EEOC Administrative Judge from the Miami District Office granted the class agent’s motion to withdraw the class complaint and remanded the case to the Agency to individually process the former class members individual EEO complaints. Thereafter, Complainant filed the present individual EEO complaint. 4 Given the complex procedural background of this case, we decline to consider the Agency’s untimeliness argument. 5 2023000463 ANALYSIS AND FINDINGS Under the Commission regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. EEOC’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant does not allege that they were “aggrieved” within the meaning of EEOC’s regulations, then an agency shall dismiss the complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), EEOC reaffirmed its long-standing position on “joint employers;” it is supported by numerous sources including: EEOC Compliance Manual, “Threshold Issues,” OLC Control No. EEOC-CVG- 2000-2 (May 12, 2000) (Compliance Manual) at § 2-I]II(B)(1)(a)(iii)(b), EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, “Coverage Issues,” OLC Control No. EEOCCVG-1998-2 (Dec. 3, 1997) (Enforcement Guidance) at Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 and 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. On the factor of the right to control when, where, and how a 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), reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (when a staffing firm issued a complainant’s appraisal with input from the agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided logistical resources to perform the job, this pointed to joint employment. Elkin v. Dep’t of the Army, EEOC Appeal No. 0120122211 (Nov. 8, 2012). Similarly, if a staffing firm terminates a worker because an agency communicates it no longer wants that worker, then this supports that the agency has joint and de facto authority to discharge the worker. Complainants v. Dep’t of Justice, EEOC Appeal Nos. 0120141963 and 0120141762 (Jan. 28, 2015). EEOC considers relevant each entity’s right to control terms and conditions of employment, whether or not it exercises joint employer authority. Enforcement Guidance at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of a worker’s labor, but does not generally exercise that right, the entity may still be found to be a joint employer). Here, it is undisputed that the Agency provided equipment and working space to Complainant. Complainant also dealt with the Agency employees who were designated its Contracting Officer Representative (COR) on a regular basis, including his objecting to tasks that he believed exceeded the prime contract’s statement of work. Complainant also alleged an Agency official 6 2023000463 tried to pressure him into giving her an LSS certification, and the Chief of Staff directed him to alter some training materials. Nevertheless, we find that other factors, considered together, show the primary control of Complainant’s work was exercised by the prime contractor and subcontractor in this case. While the Agency negotiated the Statement of Work with ATCS and assigned projects and guidelines, Complainant, as a skilled consultant, performed his day-to-day work without direct supervision from any Agency official. In fact, Complainant explicitly stated, “[t]he team [of consultants] both led and executed their own LSS projects and trained local hires . . .” and added that “FEMA management . . . did not monitor the program . . .”. Complaint File at 14, 20. In addition, the Agency did not pay or provide benefits to Complainant and did not track or monitor his time and attendance. By his own admission, Complainant was paid by NoMuda, Inc. as a “1099 contractor.” The Agency also did not provide Complainant with performance evaluations. Significantly, the circumstances of Complainant’s termination are critical in determining that the Agency lacked primary control over his work and that it did not qualify as a joint employer. Herrera v. Dep’t of the Army, EEOC Appeal No. 0120082452 (Nov. 5, 2008) (finding it significant that the prime contractor, as opposed to the Agency, had made the actual decision to terminate a subcontractor complainant). It is undisputed that, on June 11, 2019, the prime contractor’s vice president verbally notified Complainant that his services were terminated and instructed him to return the Agency’s equipment and to depart from the Agency’s facilities in Puerto Rico. Moreover, when he had previously attempted, for health reasons, to resign, Complainant had contacted the same vice president for the prime contractor instead of Agency management. For the reasons set forth above, the Commission determines that Complainant was not an Agency employee for the purpose of establishing standing to utilize the 29 C.F.R. Part 1614 EEO complaint process. CONCLUSION Accordingly, we find that the Agency's properly dismissed the Complainant's formal EEO complaint for failure to state a claim in accordance with 29 C.F.R § 1614.107(a)(1). Therefore, this Commission hereby AFFIRMS the final Agency decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 7 2023000463 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 8 2023000463 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 January 31, 2023 Date
