Felicidad S.v.Dep’t of Def.

Equal Employment Opportunity Commission

Nov 6, 2019

EEOC Appeal No. 2019003976 (E.E.O.C. Nov. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Felicidad S.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.

Appeal No. 2019003976

Agency No. NGA-0051-2018

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency final decision, dated April 24, 2019, 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

From approximately October 2009 through June 1, 2018, Complainant worked as an AECOM Site
Security Officer assigned to the Agency’s NCE, Workforce Support Center (WSC) in Springfield,
Virginia.

On May 18, 2018, Complainant bumped shoulders with another AECOM employee (hereinafter
“AECOM-J”) while passing in a narrow walkway. Believing the “incident” constituted assault
and harassment, Complainant reported the situation to AECOM Human Resources department.
Accordingly, to Complainant, AECOM-J sent emails, with false statements, to the Agency’s
Contracting Office Representative (COR).

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.
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Days later, on May 23, 2018, Complainant was called to the COR’s office and asked to turn over
her access card badge due to the conflict with AECOM-J. Soon thereafter, “due to the customer
revoking your access to the [Agency] site,” Complainant was terminated by AECOM.

Complainant contacted an EEO counselor regarding the alleged harassment and termination.
Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on
September 21, 2018, Complainant filed a formal complaint based on race (African-American) and
color (black).

On April 24, 2019, the Agency issued a final decision, dismissing the formal complaint for failure
to state a claim. The Agency reasoned that Complainant was not an Agency employee and
therefore lacked standing to use the Agency’s EEO process. According to the Agency,
Complainant was an AECOM employee, as evidenced by her decision to report the alleged
harassment to AECOM Human Resources and the conflict was with another AECOM employee.
Further, Complainant admitted during counseling that she received her assignments from AECOM
supervisors, AECOM set her daily scheduled and she was paid by AECOM. Additionally, the
Agency acknowledged that it revoked Complainant’s access to Agency facilities, but nonetheless
asserted that it was AECOM that terminated Complainant from employment with its firm.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

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.

In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016),
the Commission reaffirmed its long-standing position on “joint employers” and noted it is found
in numerous sources. See, e.g., 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

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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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 exercise 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. Rather, 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.
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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.

A review of the instant case reflects some factors that indicate an employee/employer relationship.
It appears, for example, that Complainant has worked at Agency facilities for nine years.
Moreover, the Agency exerted some control over Complainant when it revoked her access to the
site. According to the Agency COR, he learned of the May 18, 2018 incident when he was
contacted by the Agency’s Threat Inside Office. However, AECOM also informed him of its
“ongoing work and performance issues” with Complainant, which influenced the Agency’s
decision to deny Complainant further access.

However, we find a stronger indication that the Agency did not exert sufficient control to be
considered a joint employer. At the core of the instant complaint are problems Complainant
encountered with an AECOM colleague. She reported the alleged harassment, not to Agency
officials, but to AECOM. Complainant identifies herself as a contractor and explains that AECOM
supervisors control the means and manner of her job. She describes interacting with AECOM
managers, not Agency officials. The record reflects that Complainant was terminated by AECOM.
The termination letter, on AECOM letterhead, also asks Complainant to review the severance
package it was offering her. Moreover, AECOM justified her removal by noting Complainant’s
performance problems, which was going to result in discipline. Under AECOM policy, she would
then be ineligible for a transfer to another AECOM location.

Therefore, based on the instant record we find that the Agency’s decision to dismiss the complaint
for failure to state a claim was proper.
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CONCLUSION

The Agency’s final decision dismissing the formal complaint for the reasons discussed above is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider
and also file a civil action, 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

November 6, 2019
Date