01A20699_r
06-25-2002
Sandra Maynard, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Sandra Maynard v. Department of the Navy
01A20699
June 25, 2002
.
Sandra Maynard,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A20699
Agency No. DON-01-00216-002
DECISION
Complainant filed a timely appeal with this Commission from an October
5, 2001 agency decision dismissing her complaint of unlawful employment
discrimination brought pursuant to Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Review of the record shows that on March 15, 2000, complainant accepted an
offer of a part time position as an Environmental Analyst with Flex-Tech
Professional Services, Inc., a contract service provider for the agency's
Naval Air Station (NAS) Corpus Christi.<1> Under contract, Flex-Tech
Professional Services, Inc. provided the agency with personnel to manage
all aspects of the Natural Resources and Cultural Resources Program.
Under this contract, complainant worked at the agency's NAS Corpus Christi
in the Public Works (PW) Department, providing environmental analysis
services. The record further reflects that complainant worked closely with
an agency Supervisory Environmental Engineer. The record also shows that
the agency had the Supervisory Environmental Engineer designated as a
"Customer Representative" to oversee its "contract" personnel.
On January 9, 2001, funding for complainant's position had been exhausted
and as a result, complainant was terminated.
Believing that she was a victim of discrimination, complainant contacted
an EEO Counselor and subsequently filed an EEO complaint on August 2,
2001. Therein, complainant claimed that she was the victim of unlawful
employment discrimination on the bases of sex and in reprisal for prior
protected activity. Complainant claimed that she was subjected to a
hostile work environment and harassment when:
(a) on or about October 10, 2000, Public Works (PW) management officials
questioned other PW employees regarding conversations with her and
whether PW management officials were discussed;
(b) on or about October 17, 2000, she was targeted for reprisal and
subjected to an e-mail policy to which other employees were not subjected;
(c) on October 17, 2000, her request to be moved to another building
and removed from the supervision of th Supervisory Environmental
Engineer/Customer Representative and a Facility Manager was denied;
(d) on October 17, 2000, her complaint to the Executive Officer of
reprisal and harassment was ignored;
(e) on or about October 10 through October 17, 2000, she was threatened
by the Supervisory Environmental Engineer/Customer Representative that
her Statement of Work (SOW) would be shifted to non-biologist; and that
the Flex-Tech contract would be discontinued five to six months earlier
than scheduled;
(f) on or about the weekend of October 21 through October 23, 2000,
her office at Naval Air Station Corpus Christi was vandalized;
(g) on or about October 26, 2000, she began receiving an onslaught of
suspicious phone calls at her home;
(h) anonymous hotline calls were made to various levels of the command,
including the Inspector General, to investigate her and her Navy
husband for frivolous claims of alleged interference with PW management.
Complainant determined that this purported action was an attempt by PW
management to interfere with and discourage a contract for her services;
(i) on January 9, 2001, the contract with Flex-Tech for her services,
which was scheduled to extend until February 19, 2001, was terminated
with no prior warning;
(j) on February 22, 2001, the Supervisory Environmental Engineer/Customer
Representative sent an e-mail to the chief of Naval Air Training Inspector
General making claims that she had written her down SOW and was being
excessively compensated;
(k) on or about February 23, 2001, an anonymous telefax was sent from
a Kinko's in Corpus Christi to Naval Facilities Headquarters threatening
a congressional inquiry if her position were funded again;
(l) after learning a contract had been negotiated for her services,
the Supervisory Environmental Engineer/Customer Representative instructed
that all e-mails in her work computer be erased, without her consent or
consultation with her; and
(m) Naval Air Station Corpus Christi failed to take appropriate action
to resolve the hostile work environment or stop the reprisal actions by
PW management officials.
The agency dismissed the complaint for failure to state a claim, finding
that complainant did not meet the common law of agency test requirements
for employee standing.
On appeal, complainant, through her attorney, asserted that the
Supervisory Environmental Engineer/Customer Representative controlled
complainant's work and day-to-day tasks, and provided additional details
regarding the circumstances giving rise to her complaint. The attorney
further asserted that the Supervisory Environmental Engineer/Customer
Representative established complainant's pay rate; assigned complainant
to an office near her own; provided complainant with office equipment and
secretarial support; approved and signed complainant's daily time sheets,
and authorized complainant's work travel. In her brief, the attorney
wrote �[I]n reality, Flex-Tech was merely a conduit for government funds
assigned to pay [complainant] . . . To this date, [complainant] has
never met anyone from Flex-Tech face-to-face. [Complainant's] minimal
contact with Flex-Tech has been principally related to the retaliation
and discrimination by Appellee.� The agency submits no response to
complainant's appeal.
Before the Commission or the agency can consider whether the agency has
discriminated against complainant in violation of Title VII, it first
must determine whether complainant is an agency employee or applicant
for employment within the meaning of Section 717(a) of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e-16(a)
et seq.
The Commission has applied the common law of agency test to determine
whether complainant is an agency employee under Title VII. See Ma
v. Department of Health and Human Services, EEOC Appeal No. 01962390
(June 1, 1998) (citing Nationwide Mutual Insurance Co. et. al. v. Darden,
503 U.S. 318, 323-24 (1992)). This same test applies to claims brought
under the ADEA. Specifically, the Commission will look to the following
non-exhaustive list of factors: (1) the extent of the employer's right to
control the means and manner of the worker's performance; (2) the kind of
occupation, with reference to whether the work is usually done under the
direction of a supervisor or is done by a specialist without supervision;
(3) the skill required in the particular occupation; (4) whether the
�employer� or the individual furnishes the equipment used and the place
of work; (5) the length of time the individual has worked; (6) the method
of payment, whether by time or by the job; (7) the manner in which the
work relationship is terminated, i.e., by one or both parties, with or
without notice and explanation; (8) whether annual leave is afforded; (9)
whether the work is an integral part of the business of the �employer�;
(10) whether the worker accumulates retirement benefits; (11) whether
the �employer� pays social security taxes; and (12) the intention of
the parties. See Ma v. Department of Health and Human Services, supra.
In Ma, the Commission noted that the common-law test contains, �no
shorthand formula or magic phrase that can be applied to find the
answer...[A]11 of the incidents of the relationship must be assessed and
weighed with no one factor being decisive.� Id., (citations omitted).
The Commission in Ma also noted that prior applications of the test
established in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979),
using many of the same elements considered under the common law test,
was not appreciably different from the common law of agency test. See Id.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and
Other Staffing Firms (December 3, 1997) (Guidance), we also recognize that
a "joint employment" relationship may exist where both the agency and the
"staffing firm," such as Flex-Tech, may be deemed employers. Similar
to the analysis set forth above, a determination of joint employment
requires an assessment of the comparative amount and type of control the
"staffing firm" and the agency each maintained over complainant's work.
See Lopez v. Department of the Navy, EEOC Appeal No. 01A03036 (February
28, 2001). Thus, a federal agency will qualify as a joint employer of
an individual assigned to it if it has the requisite means and manner
of control over that individual's work under the Ma criteria, whether or
not the individual is on the federal payroll. See Guidance, supra at 11.
Based on the legal standards and criteria set forth above, we find that
the agency jointly employed complainant, along with Flex-Tech, based
on the means and manner of control the agency's Manager maintained over
the conditions of complainant's day-to-day work at the agency.
According to the record, complainant's work was specified, negotiated for
a set period, and to be performed at a specified location. The record
shows that complainant was closely supervised by an agency Supervisory
Environmental Engineer/Customer Representative. In fact, the record
discloses that the Supervisory Environmental Engineer/Customer
Representative, not Flex-Tech, recruited, interviewed and selected
complainant for her position. It is equally clear that Flex-Tech had
little, if any, input into complainant's day-to-day assignments.
In conclusion, notwithstanding the fact that the Flex-Tech employment
contract shows that it employed complainant part time, providing wages,
benefits, and leave, the record before us nonetheless demonstrates
that the agency, via the Supervisory Environmental Engineer/Customer
Representative, controlled essentially all aspects of complainant's
day-to-day work. The Supervisory Environmental Engineer/Customer
Representative assigned complainant to an office near her own, and
provided complainant with all of her assignments. Complainant did
not work independently, and she received supervision from no one other
than the Supervisory Environmental Engineer/Customer Representative.
Given the nature of this relationship, and the cooperative process used
by the agency and Flex-Tech regarding personnel actions, we find that
the agency exerted the degree of control necessary to qualify it as a
joint employer with Flex-Tech, such that complainant may be deemed an
"employee" of the agency for the purpose of invoking Title VII protection.
Accordingly, we find that complainant is an "employee" of the agency,
and that the agency improperly dismissed the instant complaint on the
grounds of failure to state a claim. We REVERSE that determination,
and REMAND the complaint to the agency for further processing.<2>
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. 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 becomes final, 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.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. 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 (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 25, 2002
__________________
Date
1Flex-Tech Professional Services, Inc., having its headquarters in
Sandusky, Ohio.
2We advise the parties this decision only establishes the agency's
jurisdiction over this complaint, and does not address the merits of the
underlying claim, nor the relative liability of the agency and Flex-Tech
as joint employers should complainant prevail in her claim.