Regina M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 5, 2019

Appeal No. 2019001613 (E.E.O.C. Jun. 5, 2019)

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

Regina M.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019001613

Agency No. AREUSTUT18SEP03649

DECISION

On December 19, 2018, Complainant timely filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated
November 19, 2018, dismissing her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving
the Agency as a Conference Planner at the Agency’s United States European Command
(USEUCOM), J6 Directorate, Cybersecurity Cooperation Team, in Stuttgart, Germany.

On November 7, 2018, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency subjected her to discrimination and harassment based on her race (Asian)
and sex (female) when:

1. Her Agency supervisor (“S1”) harassed her starting in November 2017 and continuing to
August 17, 2018 (the date her service to the Agency was cut off), including on numerous
occasions doing the following: screaming at her, asking her in an abrasive manner “who
told you to send that email?”, questioning whether she really had an engineering degree,
telling her people liked to work with her because of her looks and she used her looks to get

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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what she wants, insulting her and putting her down via made-up negative stories, making
unfavorable comments about her English skills and educational background, and even
though she knew S1’s direct supervisor for over a year prior to coming on board with the
staffing firm, S1 demanded that she not have direct communication with him and
threatened her with negative consequences if she did so or communicated with S1’s J6
superiors.

2. In or around February 2018, S1 demanded that she copy her on all emails, and when she
asked why, belittled her intelligence and educational background, asked how a nuclear
engineer could be so stupid, and then said, “I am the government, you just do it.”

3. Although her contract had an expiration date of September 2020, S1 caused her
employment to be cut short. The future funding for her position was eliminated and the
position designated to be moved to the Joint Cyber Center Information Sharing, for which
she did not have the required clearance. S1 then falsely told her staffing firm that she had
performance issues and a security violation and directed it cut off her service to the Agency,
which the staffing firm did on August 17, 2018, and then terminated her effective
September 17, 2018, for lack of an assignment.

The Agency dismissed the complaint for failure to state a claim. It reasoned that it did not have
sufficient control over Complainant’s employment to be his common law joint employer.

The instant appeal followed.

ANALYSIS AND FINDINGS

The matter before us is whether the Agency properly found that Complainant had no standing to
file a Part 1614 EEO complaint because 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. 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)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

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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(May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in
this decision.

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).

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.

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).
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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, the 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.

Here, Complainant worked on Agency premises using Agency equipment. She wrote that S1
assigned projects to her directly and reviewed products and deliverables. Complaint file, Bates
Nos 30 – 31. Complainant stated that S1 provided performance assessments on individual staffing
firm employees, including herself, to their staffing firm team leads. She also said that S1 reviewed
vacation requests and directed work travel.

While the Agency local assistant contracting officer’s representative (ACOR) stated that staffing
firm personnel were assigned work by an onsite staffing firm job manager, she did not indicate if
she was stating this based on the terms of the contract between the Agency and the staffing firm,
or what actually occurs in the workplace. The record, however, supports Complainant’s version
with examples of S1 directly assigning Complainant work and reviewing it, including asking
Complainant to make modifications to “the CDR,” asking for her assistance on a spreadsheet, and
asking her to copy her on all her work emails. The ACOR also stated that while the government
provided feedback on at least a quarterly basis to the staffing firm, it was more focused on the
support it was providing as a whole, not on specific individuals. But S1, who was in a better
position to know, stated to the EEO counselor that Complainant’s performance issues were
reported by the Agency to her staffing firm. ACOR also stated that all leave requests by staffing
firm personnel should have been submitted to the staffing firm which is responsible for acting on
all leave requests. However, she again did not indicate if her statement was based on the terms of
contract or what actually occurred in the workplace. S1, who was in a better position to know, did
not deny Complainant’s claim.

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Regarding Complainant’s termination, S1 relayed the following to the EEO counselor. Around the
time Complainant’s productivity began to decline in June 2018, USEUCOM J6 (Agency)
management decided, effective September 15, 2018, to eliminate her position, initiate a new
position, and for her duties to be absorbed by other contract employees. After informing
Complainant of the decision, she became disgruntled and began asking detailed questions about a
project to which she was not assigned, raising security concerns. S1 raised her concerns with
Agency senior leadership, and then on or about August 16, 2018, contacted the staffing firm and
asked that Complainant’s access to the Agency site be removed due to security concerns. The
record reflects that the next day, the staffing firm complied by cutting off Complainant’s service
to the Agency. According to Complainant, she was terminated by her staffing firm effective
September 17, 2018, for lack of assignment. S1’s statements to the EEO counselor show that the
Agency had de facto power to terminate Complainant, which she alleges it did in this case.

Based on all the above, we find that the Agency had sufficient control over Complainant’s
employment to be considered her joint employer for the purposes of her utilizing the 29 C.F.R.
Part 1614 EEO complaint process.

Accordingly, the FAD is REVERSED.

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 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 (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.
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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.
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.

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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
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

June 5, 2019
Date