0120161722
03-03-2017
Eric M.,1 Complainant, v. Jeff Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eric M.,1
Complainant,
v.
Jeff Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120161722
Agency No. FBI-2015-00255
DECISION
On April 29, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 5, 2016, dismissing his complaint alleging 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
At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as an Investigative Analytical Consultant at the Agency's Security Division, Internal Security Section, Analysis and Investigative Unit in the Washington, D.C. metropolitan area.
On October 28, 2015, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race (African-American), age (63), and reprisal for prior protected EEO activity under Title VII when:
1. it terminated him on August 18, 2015;
2. it did not hire him for a position in the FBI's Reserve Service Program (also known as the Annuitant Program) after he submitted his application on August 13, 2015 - he believed the next group of Reserve Service Program participants were scheduled to on-board on August 23, 2015; and
3. after he was terminated, he learned that derogatory comments were placed by the Agency in his Facility Security System (FSS) record, effectively blocking him from future employment with the FBI.
In defining Complainant's complaint the Agency only identified issue 1, but a fair reading of the complaint shows he also alleged issues 2 and 3.
Complainant retired as an FBI Supervisory Special Agent (SSA) after 31 years of service. On April 20, 2015, he was hired by a staffing firm and assigned by May 2015 to serve the Agency as an Investigative Analytical Consultant where, as described by him, he conducted periodic investigations on FBI contract linguists who were viewed as constituting an inherent risk due to vulnerability to coercion by foreign intelligence organizations and terrorist groups, as well as conducting investigations on FBI employees and contractors, and task force officers identified as being at higher risk of comprising sensitive information, and analyzing this information.
The Agency dismissed issue 1 for failure to state a claim. It reasoned that Complainant was an employee of his staffing firm, not the Agency. The Agency conceded that it gave Complainant on-the-job training, that he received his assignments from an Agency Supervisory Special Agent, and worked on Agency premises using Agency equipment. It determined that it did not jointly employ Complainant because it found he was directly supervised by his staffing firm on-site supervisor who oversaw his work, he did not perform the Agency's mission - law enforcement, the staffing firm paid his compensation, and the contract between the Agency and the staffing firm showed that the Agency believed it was in a contractor relationship.
The Agency dismissed issues 2 and 3 by omission.
On appeal, Complainant argues that the Agency failed to identify issues 2 and 3. With regard to issue 1, Complainant disputes factual findings the Agency made in concluding that it did not jointly employ him. On issue 2 Complainant argues that he was an applicant for employment with the Agency and was not hired, and this states a claim.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim on the basis that he was not its employee. 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.
We begin our analysis by noting that some agencies have not applied the Commission's long-standing position on the issue of joint employment, a position that the Commission has announced a number of times and in a number of formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings. We note that the Commission's long-standing position on "joint employers" is found in numerous sources. See e.g., Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (Nov. 10, 2016); EEOC Compliance Manual Section 2, "Threshold Issues," Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual)2; EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance), "Coverage Issues," Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision.
Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 2016); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination.
The term "joint employer" refers to two or more employers that each exercises sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2-III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, "Coverage Issues," at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, material, and equipment to perform the job; the duration of the relationship between the Agency and the worker whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section 2-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) ("Entities are joint employers if they 'share or co-determine those matters governing essential terms and conditions of employment'") (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390.
The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers).
On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required; the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 0120131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing firm provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of America, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, "Coverage Issues," at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer).
In assessing the right to control, EEOC does not consider any one factor to be decisive and emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances in the individual's relationship with the agency should be considered to determine if the agency should be deemed the worker's joint employer. Enforcement Guidance, "Coverage Issues," at Qs. 1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual's work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q. 2.
Here, the analysis is straight-forward. The Agency controlled how Complainant performed his job. It conceded that it assigned him his work, and this is supported by the record. The EEO counselor wrote that Agency's Supervisory Special Agent 1 told her that he talked daily to Complainant about his work and he and the Agency Unit Chief met with Complainant to address his performance. The EEO counselor relayed that Supervisory Special Agent 1 said he gave Complainant a step-by-step checklist on what to do on his cases. An Agency Program Manager wrote that Supervisory Special Agent 1 trained Complainant on specific checks to run, how to do them, and how to write an analysis of these checks for his investigations, and did this via one-on-one training with him, email, group meetings, and feedback in Sentinel, an Agency online system, and that he was also mentored by a higher level Agency manager. The Agency Program Manager further wrote that every document Complainant submitted into Sentinel was reviewed by the Agency for approval, it gave him daily feedback on his work, and Supervisory Special Agent 1 assisted Complainant by reviewing his documents and giving him investigative guidance. Complainant wrote in his complaint that he prioritized his cases based on a recommendation by an Agency manager. He wrote on appeal that his staffing firm supervisor's supervision of him was extremely limited and consisted primarily of time keeping. Consistent with this, the EEO counselor relayed that the on-site staffing firm supervisor told her that the Agency informed him it was terminating Complainant 45 minutes before it occurred, and he was not aware of any performance problems before then.
The Agency controlled other aspects of Complainant's job. For example, Complainant wrote in his complaint that qualifications for an Investigative Analytical Consultant included a minimum of 15 years of federal law enforcement experience and experience presenting cases for prosecution to U.S. Attorneys. Also, the contract between the Agency and staffing firm required that when a staffing firm's employee resigns, the staffing firm must submit resumes of a proposed replacement. All this indicates that the Agency had substantial input into who was permitted to serve in Complainant's job. Further, Complainant worked on Agency premises using Agency equipment, and served the Agency for a substantial period of time.
Significantly, Complainant alleged discrimination when he was terminated from his position with the Agency. The EEO counselor relayed that Supervisory Special Agent 1 said that after there was no improvement in Complainant's performance, he informed the Unit Chief, and in turn the Agency Section Chief approved terminating Complainant's services. As we noted above, the on-site staffing firm supervisor stated he was notified that the Agency was terminating Complainant's service less than an hour before it became effective. In sum, we conclude that the Agency had de facto or joint power to terminate Complainant.
Based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency possessed sufficient control over Complainant's position to qualify as his joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
The Agency's dismissal of issue 1 is reversed. Further, the Agency's dismissal of issues 2 and 3 by omission is reversed. Accordingly, the FAD is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER
The Agency is ordered to process the remanded claims, as redefined herein, 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 was issued. 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 was issued, 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 3, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov.
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