0120132185
05-29-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132185
Agency No. 136588801085
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 12, 2013, dismissing his 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. The Agency improperly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim. For the following reasons, the Agency's decision is REVERSED and REMANDED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sheet Metal Mechanic (Affordable Engineering Services (AES) Contractor Employee) at the Agency's Fleet Readiness Center Southwest (FRCSW) facility in San Diego, CA. On March 13, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Vietnam), sex (male), religion (Buddhist), color (yellow), age (56), and reprisal for prior protected EEO activity under Title VII and the ADEA when:
1. On January 23, 2012, Complainant was denied leave to observe the Chinese New Year;
2. On December 2, 2011 and May 4, 2012, Complainant was reprimanded for a missing tool;
3. On a number of dates in 2012, Complainant was notified that he was "not qualified" for approximately nine (9) to ten (10) federal government vacancies to which he applied;
4. Complainant was placed in fear that his Agency supervisor would fire him; and
5. Agency supervisor had a policy forbidding Vietnamese personnel from speaking Vietnamese in the workplace, and from working on teams together or otherwise helping each other with work related assignments.
Complainant was part of a putative class under consideration for certification regarding these incidents, but the class was not certified by an EEOC Administrative Judge (AJ), which was the subject of appeal in Lam v. Dept. of Navy, EEOC Appeal No. 0120131451 (July 16, 2014). Complainant proceeded to file his individual discrimination complaint with the Agency.
On April 12, 2013, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant was not an Agency employee and did not have standing to file a complaint under 29 C.F.R. 1614. This is the subject of the present appeal.
CONTENTIONS ON APPEAL
The Agency maintains that Complainant, an AES employee, is a contract employee providing support services to the Agency, and is not Agency employee. In support of this contention, the Agency pointed out that it did not hire Complainant; does not have the ability to terminate or discipline Complainant; is not involved in determining the amount of leave Complainant may accumulate or when to take it; does not determine Complainant's retirement benefits; does not approve Complainant's leave; and does not pay Complainant.
Complainant maintains that he is an employee of the Agency for purposes of Title VII. In support of this contention, Complainant offered testimony from other Vietnamese AES contract employees at the FRCSW facility to show that the Agency exercised day-to-day control over the terms of his employment.1
ANALYSIS AND FINDINGS
The common law agency test is used to determine whether an individual is an agency employee under Title VII. Kereem v. Dep't of State, EEOC Request No. 0520110069 (April 26, 2012) citing Baker v. Dep't of the Army, EEOC Request No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Serv., EEOC Request No. 01962390 (May 29, 1998). Specifically, the Commission looks 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) length of time the individual has worked; (6) method of payment, whether by time or by the job; (7) 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, EEOC Request No. 01962390 (noting that all of the incidents of the relationship must be assessed and weighed with no one factor being decisive). A federal agency, as a client of a staffing firm, may qualify as an employer of a worker assigned to it if it has sufficient control over the worker, regardless of whether the worker is on the federal payroll. Cashwell v. Dep't of Commerce, EEOC Request No. 0120131619 (Sept. 5, 2013); Baker v. Department of the Army, EEOC Request No. 01A45313 (March 16, 2006). In such a situation, the Agency and the staffing firm would be considered joint employers of a worker.
During the course of a hearing on class certification in Lam, EEOC Hearing No. 480-2012-00580X, for which Complainant was part of the putative class under consideration, the Agency briefed the AJ on the specific issue of contractor versus employee status as part of its argument against numerosity. The AJ determined, as part of her findings, that the individuals in question were joint-employees, noting that the specific employment practice at issue, harassment, is controlled by the Agency, i.e. it is an allegedly hostile work environment created at an Agency facility by an Agency supervisor who is unquestionably an Agency employee. Rather than merely deeming the supposed contractors to be joint-employees for the sake of analysis, the AJ discussed the Ma factors in reaching her determination that the individuals in question were joint-employees, noting the factors which specifically indicated "control" and therefore joint-employee status. In its final order, the Agency noted the "joint employee" determination without comment, and then fully implemented the AJ's decision. The Agency did not brief the contractor/employee issue in its reply to the appeal in Lam v. Dept. of Navy, EEOC Appeal No. 0120131451 (July 16, 2014).
Therefore, since the Agency had ample notice and opportunity to contest the AJ's determination that putative class members under consideration were joint employees in Lam, but did not do so, the issue is res judicata. See Lam, EEOC Appeal No. 0120131451 (noting that the issue of whether class members under consideration are joint employees is res judicata) The Agency's decision to dismiss the complaint was not proper since the Agency exercised sufficient control over Complainant's position to be regarded as his employer for purposes of the EEO complaint process pursuant to 29 C.F.R. � 1614.
CONCLUSION
Accordingly, the Agency's final decision dismissing the complaint is REVERSED and 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. 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
May 29, 2015
__________________
Date
1 Vietnamese employees and contractors provided testimony in Lam v. Dept. of Navy, EEOC Hearing No. 480-2012-00580X (January 2, 2013) in their attempt to certify a class against the Agency.
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01-2013-2185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132185