EEOC Appeal No. 0120143174
05-06-2016
Beth G. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Beth G.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120143174
Agency No. 2003-0549-2014103146
DECISION
Complainant filed an appeal with this Commission from an Agency decision, dated August 13, 2014, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant was an applicant for a Nurse Practitioner position with CR Associates, Inc., which contracted with the Agency to provide health care resources at the VA North Texas Veterans Healthcare System, Community Based Outpatient Clinic (CBOC) in Bridgeport, Texas.
As part of the application process, the Agency required Complainant to complete a "Credentialing Packet", which included a "Declaration of Health" and "Scope of Practice" forms. Complainant was also required to complete a "VetPro" file online to initiate the credentialing process.
Thereafter, Complainant received a telephone call from the Agency's Health Systems Specialist requesting she submit documents that were missing from her returned credentialing packet, including the Declaration of Health (i.e. a physical examination). Complainant contacted CR Associates, explaining that she was willing to complete the examination, "as soon as someone wants to pay for it, and tell me what physical or other attributes are required to do this job that the physician needs to sign off o[n]. . . This also requires that committed offer, which you insist will not come til they have the physical signed off o[n]. Must be time to call my Senator's Office." Later the same day, Complainant was informed that CR Associates "will cease your credentialing."
Believing that these actions were discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. Subsequently, on June 16, 2014, Complainant filed a formal complaint based on disability.
The Agency issued the instant final decision, on August 13, 2014, dismissing the formal complaint for failure to state a claim. Specifically, the Agency found that Complainant was seeking employment with a contractor and lacked standing to file an EEO complaint against the Agency. The Agency reasoned that it was CR Associates that offered Complainant a position and terminated the employment process. Citing from the "Statement of Work" portion of its contract with CR Associates, the Agency noted that CR Associates was to "provide healthcare clinical providers... and all administrative functions to fulfill the level of care and range of services." Further, the contract stated "The parties agree that the contractor, its employees, agents and subcontractors shall not be considered VA employees for any purpose."
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Joint Employer Relationship
The matter before us is whether the Agency properly dismissed the instant formal complaint for failure to state a claim. 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.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control the manner and means by which the work is accomplished.2
2. The skill required to perform the work (lower skill points toward an employment relationship).
3. The source of the tools, materials and equipment used to perform the job.
4. The location of the work.
5. The duration of the relationship between the parties.
6. The employer has the right to assign additional projects to the worker.
7. The extent of the worker's discretion over when and how long to work.
8. The method of payment to the worker.
9. The worker's role in hiring and paying assistants.
10. The work is part of the regular business of the employer.
11. The employer is in business.
12. The employer provides the worker with benefits such as insurance, leave or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes.
Id. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint 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 maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues, Question 2.
As an initial matter, we note that while the Agency makes reference to the Ma factors, the Agency did not provide a detailed analysis of those factors. Instead, the Agency quotes from the contract it entered with CR Associates to conclude it did not exercise the requisite control over the means and manner of Complainant to be considered a joint employer.
Factors (1), (3), (4), and (10) Indicate that the Agency Jointly Employs Complainant
The instant record indicates that Complainant was to be supervised by an Agency physician. In fact, Complainant contends on appeal that her Michigan license requires such supervision. Further, the Agency's own "Bylaws and Rules of the Medical Staff of VA North Texas Health Care System" state that "overall responsibility for the clinical practice of the APRN [Advanced Practice Registered Nurses] resides with the managing physician . . . ." Therefore, we find that factor (1) indicates a joint employer relationship.
The parties do not dispute that Complainant was to work at the Agency's facility (factor (4)) with Agency materials and equipment (factor (3)). It is also clear that the position Complainant was seeking, Nurse Practitioner, was part of the regular business of the Agency. The "Statement of Work", agreed to by CR Associates and the Agency, clearly state that the CR Associates "shall provide for the continuous delivery and management of primary care for all enrolled VA patients."
Factors (12) and (13) Indicate that the Agency Does Not Jointly Employ Complainant
Complainant acknowledges that CR Associates was to provide Complainant with benefits (factor (12)) and would be her employer for tax purposes (factor (13)). The contract between CR Associates and the Agency clearly state that CR Associates would be responsible for the following: workers compensation, professional liability insurance, income tax withholding, and social security payments.
Disability-Related Inquiries and Medical Examination
While the instant appeal considers the Agency's dismissal due to Complainant's alleged lack of standing, we cannot ignore the Agency alleged actions relating to a pre-offer medical examination.
Employers may evaluate whether an applicant is qualified for a job in question by, for example, asking about an applicant's ability to perform specific job functions or by asking applicants to describe or demonstrate how they would perform the job's tasks. See EEOC Notice No. 915.002, Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations (Oct. 10, 1995) (web version) ("1995 Enforcement Guidance"), at 2.3 Under the Rehabilitation Act, however, "an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer." Id. at 1; see also 29 C.F.R. � 1630.13(a). As this Commission has explained:
In the past, some employment applications and interviews requested information about an applicant's physical and/or mental condition. This information was often used to exclude applicants with disabilities before their ability to perform the job was even evaluated. For example, applicants may have been asked about their medical conditions at the same time that they were engaging in other parts of the application process, such as completing a written job application or having references checked. If an applicant was then rejected, s/he did not necessarily know whether s/he was rejected because of disability, or because of insufficient skills or experience or a bad report from a reference. As a result, Congress established a process ... to isolate an employer's consideration of an applicant's medical condition .... Under the law, an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. This helps ensure that an applicant's possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant's non-medical qualifications.
Here, Complainant argues that she was "excluded from becoming an employee by the actions of the [Agency] requiring a physical prior to an offer of employment." Specifically, Complainant asserts that it was the Agency which "made the demand for a pre-offer physical and CR Associates withdrew [her] application for failure to acquire such, rending both [CR Associates and the Agency] potentially responsible for this act of discrimination." When Complainant responded to the allegedly unlawful request by asking for a description of the physical requirements of the position and a "committed offer," she was informed that her credentialing would not continue. In this case, we find that the nature of the Agency's allegedly discriminatory actions themselves reflect a level of control held by a joint employer.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
CONCLUSION
The Agency's final decision to dismiss the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
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 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), 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. The requests 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 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 (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
April 5, 2016
__________________
Date
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 Another factor is whether the employer can discharge the worker. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000). This factor is especially significant in termination cases.
3 This particular Commission guidance deals specifically with Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. � 12111 et seq. ("the ADA"). However, the Rehabilitation Act was amended in 1992 to clarify that all legal standards applied under the ADA are applicable to complaints of disability discrimination brought by federal employees (and by applicants for federal employment), as well. See the Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569 � 503(b) (codified as amended at 29 U.S.C. � 791(g) (1994). Thus, EEOC interpretations of the ADA are relevant to the Rehabilitation Act claim at issue here.
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