0120073338
03-11-2008
Chekesha Brazeal, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Chekesha Brazeal,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073338
Agency No. ARBELVOIR07MAR01200
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 21, 2007, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(1) & (a)(2).
On April 1, 2004, complainant began employment as a Shift Operator at
a security center of the agency. The security center provides global
communications for the armed forces and complainant's employment was under
a contract that the agency held with Ki, LLC, which in turn subcontracted
with Space Mark International (SMI). In a memorandum on SMI letterhead,
dated January 14, 2005, SMI terminated complainant's employment effective
immediately for sick leave usage. On March 14, 2007, complainant
initiated contact with an Equal Employment Opportunity (EEO) Counselor
alleging that the agency, as her joint employer, discriminated against
her on the basis of sex (female) when it terminated her employment.
Complainant stated that she was terminated because she was pregnant.
On May 24, 2007, complainant filed a formal complaint reiterating the
above allegation.
In its June 21, 2007 final decision, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. �� 1614.107(a)(2) & (a)(1), for
untimely EEO contact and failure to state a claim respectively. In its
final decision, the agency concluded that complainant was not a Federal
employee but rather was a contract employee of SMI. The agency stated
that its contractual privity extended only to the primary contractor,
Ki, and not to Ki's subcontractor, SMI. In addition, the agency
explained that SMI controlled the means and manner of complainant's work.
Specifically, the agency stated that SMI: (1) hired complainant without
agency input, (2) set complainant's work hours without review by agency
personnel, (3) established complainant's wages without agency input, (4)
used its shift leads to assign complainant's work and perform quality
control reviews of her performance, and (5) made decisions regarding
complainant's pay and benefits. Further, the agency stated that it
did not withhold social security taxes from complainant's pay; did not
provide medical insurance, long-term care insurance or other benefits
to complainant; did not provide travel or other cost reimbursements to
SMI although it provided such to the primary contractor, Ki; and did
not make personnel decisions or provide performance evaluations for
any individual SMI employee. In the record, the agency added that it
provided computer work stations, equipment and materials necessary to
fulfill the contract and that leave requests for contractors were handled
within Ki or SMI channels. Further, it stated that the contract with
Ki is in full support of the agency's operations.
The instant appeal from complainant followed. On appeal, complainant
stated that she was an joint employee of Ki, SMI and the agency, but did
not have notice of her employment with the agency until after she filed a
civil action. Specifically, complainant stated that she was acting pro-se
and no organization informed her that she could pursue her discrimination
claim in the federal sector administrative EEO process. She stated
that she contacted a her county human rights commission regarding her
allegation of discrimination, but was told that her claim package was
too lengthy and needed to be resubmitted with two paragraphs or less.
Complainant stated that, around July 13, 2005, she then contacted
the Washington Field Office of the Commission regarding her claim.
She stated that, on May 12, 2006, the Commission's Jackson Area Office
informed her that she could file a civil action on the matter.
Regarding her joint employment, on appeal, complainant stated that the
agency is her joint employer because, on a daily basis, she worked in an
agency facility, used agency equipment, performed core agency functions,
and received oversight, direction and work product approval from agency
personnel. Complainant asked that we toll the statutory time limit
for EEO contact and allow her complaint to proceed in the federal EEO
process.
We note that the record contains a Notice dated May 12, 2006 from the
Jackson Field Office of the EEOC dismissing complainant's private sector
charge. Specifically, the Notice stated: "No Jurisdiction - Respondent
[SMI] is an Alaskan Native Corporation" and informed complainant of
the right to sue in Federal or state court. Complainant filed a civil
action in the U.S. District Court for the Eastern District of Virginia,
which was docketed as 1:06cv930. On February 9, 2007, the District
Court dismissed Civil Action 1:06cv930 without prejudice for failure to
exhaust administrative remedies.1
First, regarding the timeliness of complainant's EEO contact, we find
that complainant has presented persuasive and adequate justification that
tolling is appropriate here. See 29 C.F.R. � 1614.604(c). Complainant
stated that because she thought her employment was solely private sector,
initially, she contacted a local civil rights agency about her claim and,
on or about July 13, 2005, contacted an EEOC Field Office regarding filing
a charge. SMI terminated complainant's employment effective January 14,
2005, so her July 13, 2005 contact within the private sector would be
timely. On May 12, 2006, an EEOC Area Office dismissed complainant's
charge for lack of jurisdiction and gave her the right to file in
Federal or state court. A Federal District Court dismissed the matter
without prejudice for failure to exhaust administrative remedies. Hence,
considering the totality of the circumstances, we find it appropriate to
toll the statutory deadline and allow the instant complaint to proceed
in the Federal EEO process.
Second, before the Commission can consider whether the agency has
discriminated against a complainant in violation of Title VII, we
must first determine whether the complainant was an agency employee or
applicant for employment within the meaning of Section 717(a) of Title
VII of the Civil Rights Act of 1964, an amended, 42 U.S.C. 2000e-16(a)
et seq. The Commission has applied the common law of agency test to
determine whether an individual is an agency employee under Title VII.
See Ma v. Dep't 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)). 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 usually is 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,
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]ll of the incidents of the relationship must be assessed
and weighed with no one factor being decisive." Id.
Furthermore, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(Guidance), we have also recognized that a "joint employment" relationship
may exist where both the agency and the "staffing firm" 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 maintain
over complainant's work. 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 Ma criteria, whether or
not the individual is on the Federal payroll. See Guidance.
Based on the legal standards and criteria set forth herein and in
consideration of the total circumstances, we find that the agency
exercised sufficient control over the complainant's position to
qualify as a joint employer of the complainant. See generally Baker
v. Dep't of the Army, EEOC Appeal No. 0120045313 (March 16, 2006).
The record establishes that complainant worked as a shift operator at
the Army Network Operations and Security Center (ANOSC) at Fort Belvoir,
Virginia, beginning in April 2004. Prior to her employment, she served
as an enlisted soldier in the Army from 1998 through 2003, where she
received much of the training she needed to perform her work at ANOSC.
The record shows that complainant performed her duties monitoring
the agency's networks in support of core agency missions (fighting
wars and maintaining defense readiness) in an agency facility using
agency equipment. Agency personnel, including a Watch Officer and a
Battle Captain, directed the bulk of the tasks assigned to complainant,
and she asserts she tailored her activities to this daily guidance.
Complainant regularly received her assignments from agency personnel, not
her SMI supervisor. All of her work products were subjected to review and
approval by agency personnel, resulting in complainant reporting to them
on almost every matter. By contrast, complainant asserted she generally
did not account for her daily work activities to SMI management, and her
contact with SMI mainly related to administrative matters. It is also
noted that in her termination letter, SMI management stated that all "all
[SMI/Ki] policies are mutually agreed between Management and Government
[the agency] before being released to the workforce."
In light of the totality of the employment circumstances in this case,
we conclude that the agency exerted the degree of supervision and
control necessary to qualify it as a "joint employer," so that the
complainant is an "employee" of the agency for the purpose of invoking
Title VII protection. After careful consideration of the record, we
REVERSE the agency's final decision and REMAND the matter to the agency
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim 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:
March
11,
2008
______________________________
___________________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
1 We note that, in November 2006, Ki and SMI were dismissed as party
defendants to complainant's civil action because they are Alaskan Native
Corporations, leaving only the agency as the remaining defendant.
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0120073338
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120073338