0120141059
07-02-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141059
Agency No. 2004-0658-2013103949
DECISION
On January 15, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency Decision (FAD) dated December 26, 2013, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of some or all of the events giving rise to this complaint, Complainant worked for Carilion Clinic, serving the Agency as a Psychiatry Resident (Medical Doctor) at its Veterans Affairs Medical Center (VAMC) in Salem, Virginia. Carilion Clinic is a Roanoke, Virginia not-for-profit health system which owns multiple hospitals and clinics.
On September 1, 2013, Complainant filed a formal complaint, which the Agency defined as alleging that she was subjected to a hostile work environment based on her age (57) and reprisal1 for prior protected equal employment opportunity activity under the ADEA when:
1. Around June 2010, during her initial interview for a residency position at the VAMC, a member of the interviewing panel asked her if she thought she could "handle it." During the interview she was also told that the residency program was physically taxing, she would be working with younger residents in their 30's and 40's, and she would have to work harder than her younger colleagues.
2. Since around November 2010, and as recently as June 20, 2013, Carilion Clinic Medical Resident 1 repeatedly made inappropriate comments about Complainant's age and purposely excluded her from social team building activities.
3. Since 2011, and as recently as June 13, 2013, Agency Psychiatrist 1 constantly berated Complainant, subjected her to heightened scrutiny by criticizing her work and made derogatory comments about her age. As a result of Agency Psychiatrist 1's actions, Complainant's residency contract was not renewed.
4. Since around May 2011, and as recently as June 2013, Agency Associate Program Director of the Psychiatry Residency Program, an Agency staff psychiatrist, and the Program Director thereof, who was employed by the Carilion Clinic, failed to take action on Complainant's numerous complaints of harassment and disparate treatment.
5. In June 2011 and in June 2013, Agency Psychiatrist 1 made statements which implied Complainant could not keep up with her younger colleagues.
6. On or about June 13, 2013, Agency Psychiatrist 1 made comments to Complainant suggesting she retire.
7. On or about June 25, 2013, an Agency Psychiatry Chief was advised that Complainant was subjected to disparate treatment and harassment but failed to take action.
8. On or about June 25, 2013, the Carilion Clinic Vice President of Academic Affairs was advised that Complainant was subjected to disparate treatment and harassment but failed to take action.
9. In June 2013, Agency Psychiatrist 1 instructed Carilion Clinic Medical Resident 2 to write a false statement about Complainant.
10. In support of her efforts to further defame her, the Carilion Clinic Residency Program Director instructed Carilion Clinic Medical Resident 2 to try to obtain negative performance evaluations of Complainant from her colleagues.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was a resident in a private sector residency program, not an employee of the Agency. It wrote that while residents generally have been considered employees, Complainant was not, noting she was in a private sector contractual residency program with Virginia Tech/Carilion Clinic.
The record reflects that Complainant also filed a private sector charge with the EEOC against the Carilion Clinic. In response to the charge, Carilion Clinic explained the structure of Complainant's Psychiatry Residency Program. Specifically, the program was sponsored by the Carilion Clinic, and successful completion required four years. During the Psychiatry Residency Program, Carilion Clinic assigns residents to various locations for work and educational experiences. A primary location for assignment was the VAMC.
The Director of the Psychiatry Residency Program was employed by the Carilion Clinic. The program had two associate program directors, one employed by the Carilion Clinic, and the other by the Agency.
In its FAD, the Agency conceded that Complainant was supervised by Agency staff while she did rotations with the VAMC and was on call there. It also conceded that the Agency did not recommend that Complainant's contract be renewed, but found the decision not to do so was made by Carilion Clinic. In response to an inquiry, an unidentified Agency official wrote that while the Agency did not recommend renewal of Complainant's contract because she had problems with her clinical care practices, it did not have an official role in the non-renewal, and the final decision was made by Virginia Tech/Carilion Clinic.
Complainant entered the Psychiatry Residency Program around July 1, 2010. According to the response by the Carilion Clinic to Complainant's private sector charge with the EEOC, the Agency, as well as the Carilion Clinic, were involved in various actions against Complainant. Specifically, the Agency placed Complainant on an Action Plan on or about April 15, 2011, after allegedly becoming concerned about her communication and performance, and the Program Director of the Psychiatry Residency Program, who was with Carilion Clinic, placed her on Academic Remediation on or about April 21, 2011.
Carilion Clinic wrote that in January 2012, during the second year of Complainant's residency, which was mostly on site with the Carilion Clinic, a Carilion Clinic physician reported to the Program Director of Psychiatry Clinic Residency Program that Complainant had a pattern of preparing documentation that did not contain important information about a patient, and it was also reported to the Program Director in January 2012 that Complainant had unprofessional encounters with physicians and nurses.
According to the Carilion Clinic, the third year of Complainant's residency included a lot of off-site and patient work, which included work at the VAMC. It indicated that in connection with the mishandling of the training of a medical student, which also involved mishandling the care of a patient, in February 2013, the Agency informed Carilion Clinic that Complainant could no longer supervise medical students or other residents while at the Agency -- a job responsibility of a third year resident. In February 2013, the Carilion Clinic placed Complainant on Academic Remediation a second time. The Carilion Clinic indicated that because of multiple incidents of poor medical care by Complainant while she was on call at the Agency, resistance to instruction/correction, and the way she treated nursing staff, in March 2013 the Agency decided Complainant could no longer be on call while assigned to the Agency-another primary responsibility of a resident.
On the grounds of problems with medical knowledge, patient care, decision making, communication and professionalism, the Psychiatry Residency Education Committee decided not to renew Complainant's contract for academic year 2013-14, terminating her residency at the end of her third year. Complainant was notified of this in writing by the Program Director of Psychiatry Clinic Residency Program, a Carilion Clinic manager. The letter referred to appeal rights. Complainant's appeal was denied by an appeals committee. She was notified of this in writing by the Vice President of Academic Affairs, a Carilion Clinic manager.
On appeal, Complainant argues that she was an employee of the Agency, and submits an Agency badge which labels her an employee.
In opposition to the appeal the Agency submits an affidavit indicating that all employees, volunteers, contractors, students, without compensation appointees and Agency work-study participants get personal identity verification cards.
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 when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or 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 that 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 (Carilion Clinic) and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 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 1, 3 - 6, 9 - 11 and 14 Indicate that the Agency Jointly Employs Complainant
While on rotation and serving the Agency on call, Complainant worked on Agency premises, using Agency equipment. The Agency concedes that Complainant was supervised by Agency staff during the above times. When the Agency allegedly perceived that Complainant variously gave improper patient care, did not engage in proper training of a medical student, treated staff poorly, and engaged in misconduct, it placed Complainant on an Action Plan in April 2010, removed her supervision of medical students and other residents in February 2013, and in March 2013, no longer permitted her to be on call while assigned to the Agency (factors 1, 3, 4, 6). Complainant served the Agency since 2010, a continuing relationship (factor 5). She performed work which was part of the Agency's mission - medical care (factor 10). There is no evidence that Complainant hired or paid assistants, and the record shows she was not in business for herself (factors 9, 11). Based on a preponderance of the evidence, we find that the Agency had de facto removal authority. It removed significant functions from Complainant's medical residency - being on call and supervising medical students and other residents. It also did not recommend that Complainant's contract be renewed for the fourth and final year, which more likely than not had a role in Carilion Clinic's decision to terminate Complainant (factor 14).
Factors 2, 8, 12 and 13 Indicate that Complainant May not be an Employee of the Agency
Complainant's work requires a high level of skill or expertise (factor 2). Carilion Clinic took care of Complainant's compensation and benefits (factors 8, 12, 13).
The record does not reflect who set Complainant's hours nor whether the Agency believed it was creating an employer-employee relationship. Accordingly, factors 7 and 15 do not point in any direction.
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. We find, however, that this only applies actions which arose or occurred from Complainant being on rotation with the Agency, on call with the Agency, and/or working with Agency patients, and include her initial interview and removal.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq.2 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
July 2, 2014
__________________
Date
1 The Agency's definition of Complainant's complaint did not include reprisal. Complainant, however, alleged reprisal in the narrative portion of her complaint.
2 This only applies to actions and events which arose or occurred in connection with Complainant being on rotation and/or on call with the Agency and/or working with Agency patients, and include her initial interview and removal.
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0120141059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141059