EEOC Appeal No.0120150318
02-27-2015
Complainant v. Dep't of Transp.
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120150318
Agency No. 2014-25817-OST-02
DECISION
On October 25, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 25, 2014, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for a private staffing firm serving the Agency as a Program Analyst at its Office of Small and Disadvantaged Business Utilization (OSDBU), Finance Division, Short Term Lending Program (STLP) in Washington, DC.
On August 27, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Asian Indian) and color (Brown) when:
1. During the entire length of his employment (January 13, 2014 through July 11, 2014), he was subjected to a hostile work environment.
2. He was terminated effective July 11, 2014.
The Agency dismissed the complaint for failure to state a claim. It reasoned that he was not an employee of the Agency.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's 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.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.
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) (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.
Factors 8, 12 and 13 Indicate that the Agency may not Jointly Employ Complainant
Complainant wrote that doing the job required him to understand short term lending program packages, which included analysis of tax returns and financial statements for the business and the borrower, requiring a high degree of skill (factor 2). In addition, Complainant was paid by the staffing firm, and the Agency did not provide benefits (factors 8, 12, 13).
Factors 1, 3 - 7, and 9 - 11 Indicate that the Agency Jointly Employs Complainant
The Agency conceded that it assigned Complainant his projects (Complaint file, at 36). Complainant wrote that the program he worked in was supervised by an Agency Senior Advisor, and gave examples of supervision: the Senior Advisor asked to review drafts of Internal Loan reports and emails (which Complainant suggested he created); he was involved in meetings with the Senior Advisor and the Agency Director of OSDBU to review work he completed and to get supervision for work he had not yet completed; he had weekly meetings with the Agency Senior Advisor, an Agency Small Business Specialist, and the Independent Financial Advisor to review loans and determine what outstanding documents were needed; and the Agency OSDBU Director signed off on loan guarantee approval packages Complainant created. The Agency does not dispute this. Some incidents of alleged harassment were also tied in with the Agency's supervision: the Agency OSDBU Director held him to a higher standard than others; he was reprimanded via email by the Agency Senior Advisor and Agency Small Business Specialist for alleged errors; he was told by the Agency OSDBU Director not to network with people at his desk; and his whereabouts were monitored by the Director.
The statement of work agreed to by the staffing firm and the Agency provided that staffing firm staff would provide support Monday through Friday, 9 AM to 5 PM, which set Complainant's work schedule (factors 1, 6, 7). Complainant worked on Agency premises using Agency equipment and materials (factors 3, 4). He worked for the Agency nearly six months and was expected to work much longer, resulting in a continuing relationship (factor 5). Complainant did not hire and pay assistants (factors 9). Complainant helped create packages for loan guarantees, track the processing of them to ensure their success, and conduct outreach to educate the community on the STLP program. This was part of the mission of the Agency -- to facilitate small and disadvantaged business enterprises to gain access to Agency funded or Agency assisted contracting opportunities to fund transportation (factor 10 and 11).
Complainant contended that the staffing firm did not recruit him, interview him, or vet his qualifications. Complainant stated that he interviewed with the Agency Senior Advisor and the Agency Financial Assistance Division Manager for an Agency position in late September 2013, and in December 2014, was asked by the Senior Advisor if he was interested in coming on board as a contract Program Analyst through the staffing firm. This further demonstrates the Agency's control over the position.
Complainant also contended that that the staffing firm did not terminate his employment. Rather, he asserted that it was the Agency that made the decision to cut off his services. This was not disputed by the Agency. According to the EEO counselor's report, the Agency Senior Advisor said that by May 23, 2014, the staffing firm notified Complainant that his service to the Agency was terminating, and on that day he advised Complainant that based on what he brought to the table, his service was not a good fit for the Agency. According to Complainant, on June 23, 2014, the Agency Senior Advisor told him he was not a good fit in the office because he had one foot out the door by seeking jobs elsewhere.
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 his employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
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 (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 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 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
February 27, 2015
__________________
Date
1Another 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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0120150318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150318