[Redacted], Stan G., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Nov 21, 2022

Appeal No. 2022002523 (E.E.O.C. Nov. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan G.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2022002523 Agency No. DEPT-2022-00145 DECISION On April 7, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a March 8, 2022 final Agency decision (FAD) dismissing his complaint of 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 follows) and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was employed by Aspis LLC, a staffing firm contracting with the Agency, and assigned to work as an Executive Assistant at the Agency’s Office of Chief Information Officer located in Washington, D.C. On January 31, 2022, Complainant filed an equal opportunity (EEO) complaint alleging that the Agency and staffing firm: 1. On or about November 16, 2021, Aspis LLC management terminated his employment contract with the company to serve as a Contractual Executive Assistant assigned to the [Agency]. 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. 2022002523 2 2. On or about November 16, 2021, Aspis LLC assigned him to work on [an additional] project under a new contract Aspis LLC obtained with the [Agency], and required him to work overtime to learn new Information Technology material which was beyond the scope of the EA duties for which he was hired to perform. 3. On several dates, he was subjected to various incidents of harassment, including, but not limited to: a. In August 2021, a Human Resources/Cyber Security employee [employer not identified] asked him if he was gay. b. On or about August 30, 2021, the staffing firm Senior Executive Assistant [his first line supervisor (“Aspis Supervisor”)] and a co-worker [employer not identified] made several jokes and comments about men. c. On or about August 30, 2021, and thereafter, the Aspis LLC Chief Executive Officer [(“Aspis CEO”)] failed to address his reported civil rights concerns. d. On unspecified dates, [Aspis Supervisor] ignored his emails and messages and mad comments such as “Are you really sick? We can’t see it.”; and, e. on unspecified dates, the Program Manager (Prime Contractor) and Director, Program Management Division, USDA failed to address his reported civil rights concerns. The Agency dismissed Complainant’s complaint for failure to state a claim. It reasoned he was an employee of the staffing firm, not the Agency. On appeal, Complainant provides no statement or contentions. In reply, the Agency argues that the FAD should be affirmed and offers additional grounds for dismissing Complainant’s complaint. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint for failure to state a claim because he was not its employee. Our jurisdiction is limited to employees and applicants for employment in covered departments, agencies and units. 29 C.F.R. § 1614.103(c). In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (Nov. 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 2022002523 3 2-III(B)(1)(a)(iii)(b) OLC Control No. EEOC-CVG-2000-2 (May 12, 2000) (Compliance Manual); EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms OLC Control No. EEOC- CVG-1998-2 (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. 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. 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), req. to reconsider 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). 2022002523 4 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. 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 Aspis LLC supervised Complainant and determined the specific assignments each Aspis LLC worker performed. It is unclear whether Complainant teleworked from home, performed his work on Agency premises, or a combination of both. The Agency gave Complainant the equipment he needed to perform his duties. Aspis LLC oversaw Complainant’s schedule and provided his compensation. Complainant’s allegation that when he called out sick, Aspis Supervisor made comments such as “Are you really sick? We can’t see it” suggests the staffing firm controlled approval of his leave requests. Complainant’s central claim is that Aspis LLC denied his request for reasonable accommodation and terminated him because he was unwilling to accept an additional assignment outside his limitations. There is a series of emails between Complainant and Aspis CEO relevant to understanding issues 2 and 3. On November 16, 2021, Complainant emailed Aspis CEO that he was not was not interested in the additional project for a variety of reasons. Aspis CEO replied the same day that he wanted more information from Complainant so they could resolve this problem together. He added that the staffing firm already invested in him, on the additional project he would get job training at a higher pay rate, and his options were to perform the additional assignment or resign from Aspis LLC. In response, Complainant explained that due to his disabilities and flare ups he did not have the time or bandwidth to learn new information technology material. On November 18, 2021, Apsis CEO stated that there was nothing unlawful about his supervisor assigning him an additional project to work on. These emails do not indicate the Agency had input regarding Complainant’s termination, nor does he allege there was any. Aspis LLC made an independent decision to terminate Complainant, which points to it controlling his employment. Based on the instant record, we find that the Agency did not have sufficient control over Complainant’s employment to be considered his joint employer for EEO purposes. 2022002523 5 CONCLUSION Accordingly, we find that the Agency’s decision dismissing the complaint was proper and is hereby AFFIRMED. 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. 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. 2022002523 6 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. 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 November 21, 2022 Date