0120143217
05-13-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120143217
Agency No. DeCA-00149-2014
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 26, 2014, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the relevant time, Complainant worked with Highplains Marketing Services (HMS), Inc., which contracted with the Agency to provide support at the Randolph Air Force Base Commissary in Fort Sam Houston, Texas. Complainant worked as a Sales Representative.
Believing that she was subjected to harassment, Complainant reported to both the Agency and HMS. Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On July 31, 2014, Complainant filed the instant formal complaint based on race, sex, age, and in reprisal for prior EEO activity.
The Agency framed the claims as follows:
during the period of April 24, 2014 through July 23, 2014, Complainant was subjected to harassment and a hostile work environment by the Grocery Manager. Specific allegations include, but are not limited to the following matters:
a. Complainant felt threatened by the Grocery Manager's verbal and abusive behavior, causing stress;
b. her work material and tools were boxed up, disappeared and personal belongings locked in the Grocery Manager's office;
c. her hours were decreased from five days per week to two or three days per week;
d. she was assigned to a work area that was cluttered with boxes, wood, office equipment and infested with rodents; and
e. the Grocery Manager repeatedly informed an HMS representative to terminate Complainant on four occasions. Subsequently, on July 23, 2014, Complainant's contractual agreement with the Agency was terminated.
In its June 17, 2014 final decision, the Agency dismissed the formal complaint for failure to state a claim. Without elaboration, the Agency simply concluded that Complainant was a contract employee and therefore the Agency "does not have jurisdiction over the alleged discriminatory claims you have articulated."
The Agency also dismissed the basis of age, finding that Complainant was under the age of forty during the period at issue, and therefore did not have standing to assert an ADEA claim. Moreover, the Agency dismissed the basis of reprisal, finding that there is no record of prior EEO activity.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
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.1
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 (i.e. the employer withholds federal, state, and social security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe they are creating an employer-employee relationship.
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) (available at www.eeoc.gov).
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)(available at www.eeoc.gov.), 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.
We note that the record contains a copy of the EEO Specialist's notes containing Complainant's responses on the "DeFacto Ma Factors." When asked if a contract describing the work relationship between her and the Agency existed, Complainant responded "I will have to look into this and I will get back to you." Complainant also stated that all of her equipment, materials and supplies "I need to do my job are provided by both High Plains Marketing and the Commissary." Moreover, Complainant stated that she is "primarily assigned five days a week to the Randolph commissary and I do not service any other private of federal stores."
However, the Agency in its final decision provided no analysis whatsoever in finding that Complainant was a contractor. In addition, the record contains no documentation (such as a copy of the contract between the Agency and HMS) with respect to the factors identified above. Based on the foregoing, we REVERSE the Agency's dismissal on the grounds of failure to state a claim. We REMAND this matter to the Agency for a supplemental investigation in order to determine whether the Agency was a joint employer for EEO purposes, in accordance with the ORDER below.
Because we are remanding this matter to the Agency for further processing, and for the sake of administrative efficiency, we will not at this time address the Agency's added dismissal of the bases of age and reprisal.
ORDER
The Agency is ORDERED to conduct a supplemental investigation on whether it has sufficient control over the position at issue to be a joint employer. In so doing, the Agency shall supplement the record with documentation, including the contract between the Agency and HMS, pertaining to the 15 listed factors set forth above. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide her an opportunity to respond, and include her response in the supplemental investigation.
Based on the results of the supplemental investigation, the Agency shall issue a new decision accepting the complaint for further processing or procedurally dismissing it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting verifying the corrective action has been implemented, including a copy of the acceptance letter or final decision, as applicable.
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 (M0610)
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 tends 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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 13, 2015
__________________
Date
1 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) (available at www.eeoc.gov). This factor is especially significant in termination cases.
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0120143217
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120143217