[Redacted], Merle S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

May 31, 2022

Appeal No. 2022001699 (E.E.O.C. May. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merle S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2022001699 Agency No. DIA-2022-00004 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 10, 2022, dismissing a formal 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. BACKGROUND During the period at issue, Complainant was a contractor with Jill Rogers Consulting LLC (JRC) serving the Agency as a Cyber-Threat Analysis Training course manager. On November 29, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity (reporting an alleged assault involving a government employee (G1)) when, on September 10, 2021, Complainant was removed from his contract position and terminated from employment with the contract company. In the instant final decision, the Agency dismissed the formal complaint for failure to state a claim. Regarding the basis of reprisal, the Agency reasoned that reporting an allegation of assault does not constitute protected EEO activity. Regarding the remainder of the formal complaint, the 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. 2022001699 2 Agency found that it did not exercise sufficient control over Complainant to qualify as a joint employer for EEO purposes. The Agency noted that JRC provided Complainant with benefits and withheld taxes. The Agency acknowledged that it set the hours of Complainant’s position and that it provided Complainant with the tools, materials, and equipment for his position. The Agency’s final decision noted, “[t]he Agency’s Leadership recommended [Complainant’s] removal from the contract but it was JRC LLC who terminated [him] from [his] position.”2 The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s dismissal of his complaint and asserts that the Agency was his joint employer. Complainant noted that the Agency provided him with the tools and equipment to perform the duties of his position and set the hours and duration of his position. In response, the Agency requests that we affirm its final decision. The Agency, in a lengthy brief, sets forth that Complainant’s “high skills, independence, substitutability, method paid, time worked, taxes paid by JRC, termination by JRC, intention of the parties…show in totality he was controlled by JRC…” Thus, the Agency found that it was not a joint employer of Complainant’s for EEO purposes. ANALYSIS AND FINDINGS Basis of Reprisal A claim of reprisal must be based on a complainant’s prior participation in the EEO process or opposition to discrimination. See 29 C.F.R. § 1614.101(b). The Agency improperly dismissed the basis of reprisal. In its final decision, the Agency found that Complainant reporting an alleged assault by G1 did not constitute protected EEO activity. However, the record reflects that Complainant appears to be asserting that the alleged assault was based, at least in part, on race. Complainant, in his formal EEO complaint, referred to the alleged assault by G1 as “racially motivated.” In addition, in the EEO Counselor’s Report, Complainant asserted that he heard that G1 made racial comments. Thus, Complainant may have engaged in protected opposition to discrimination by reporting the alleged assault. While it is unclear from the record whether Complainant informed the Agency (either verbally or in writing) that he believed the alleged assault by G1 was racially motivated prior to his termination, this determination can only be made after a formal investigation. Based on the foregoing, we find that the Agency’s dismissal of the basis of reprisal is improper. 2 The Agency’s final decision provided “[t]he Agency, at its discretion, may request or direct [JRC] to immediately remove any contractor from the work site who had been disqualified for either suitability or security reasons, found unfit to perform duties, or failed to comply with acceptable standards of conduct, competency, or integrity…” Final Agency Decision at 5. 2022001699 3 Remainder of the Complaint The matter before us is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim on the basis that he 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. In Serita B. v. Dep’t of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016), the Commission reaffirmed its longstanding position on “joint employers” and noted that 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); 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, however, 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. 2022001699 4 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(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). Given that the instant matter involves Complainant’s termination, the circumstances surrounding his termination are significant to the analysis of whether the Agency is a joint employer of Complainant for EEO purposes. The record reflects that the Agency played a significant role in the decision to terminate Complainant. In an attachment to his formal complaint, Complainant states that Agency leadership was involved in his termination. Specifically, Complainant stated, “I was verbally informed by [the named contract lead] that [Academy for Defense Intelligence, (ADI)] leadership emailed him that I must be removed from the contract…” The record reflects that the EEO Counselor interviewed various Agency Officials and JRC personnel regarding Complainant’s termination, including the Contracting Officer Representative (COR), as well as the contract lead with JRC. The record reflects that the Agency had de facto power to terminate Complainant. According to the EEO Counselor’s Report, the contract lead, provided that “the COR would inform him by email if the Agency wanted 2022001699 5 someone removed from the contract.” According to the contract lead, while he relayed the news to Complainant that he was being removed from the contract, the COR sent the request to remove Complainant from the contract…”3 The record reflects the EEO Counselor interviewed an Agency Deputy Chief (DC) with ADI. The DC asserted, according to the EEO Counselor’s Report, that Complainant was removed from the contract because of Complainant’s failure to downgrade a course, negative feedback on surveys, and negative interactions with the Training Coordinator. Finally, the EEO Counselor also interviewed the Agency’s COR. The COR asserted, as set forth in the EEO Counselor’s Report that, that the decision to remove Complainant from the contract was “a group decision and the request would come from Branch Leadership.” The COR stated he agreed with leadership’s decision to remove Complainant from the contract and he relayed this to the contract lead.4 Based on the foregoing, we find that the Agency had the de facto power to terminate Complainant, which it exercised. Given this power, and given the absence of any information that JRC made an independent decision to terminate Complainant apart from the COR informing them that Complainant should be removed from the contract, we conclude that the Agency had sufficient control over Complainant’s employment to be his common law joint employer. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims 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. 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 3 The contract lead also stated that Complainant received day-to day directions from Agency employees and that the Agency set Complainant’s hours. The contract lead acknowledged that JRC provided Complainant benefits and withheld taxes from his compensation. 4 The COR also set forth that the government furnished the equipment that Complainant needed for the position and Complainant’s work was primarily performed at Agency headquarters (telework was allowed when possible). 2022001699 6 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. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022001699 7 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 (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 which you work. Filing a civil action will terminate the administrative processing of your complaint. 2022001699 8 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 May 31, 2022 Date