0120150262
02-11-2016
Helen G.,1 Complainant, v. Patrick J. Murphy, Acting Secretary, Department of the Army, Agency.
Helen G.,1
Complainant,
v.
Patrick J. Murphy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120150262
Agency No. ARDETRICK14AUG03227
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 1, 2014, 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.
BACKGROUND
During the period at issue, Complainant worked as a Financial Analyst for the Pharmaceutical Systems Project Management Office (PSPMO) in the Agency's Medical Material Development Activity (USAMMDA) in Frederick, Maryland. She was placed at the Agency by General Dynamics Information Technology (GDIT), a contractor providing services to the Agency.
On September 24, 2014, Complainant filed a formal EEO complaint claiming that the Agency subjected her to unlawful retaliation when, on July 2, 2014, she was terminated from her position after she reported the sexual harassment of a coworker to the Commander of USAMMDA.
On October 1, 2014, the Agency issued a decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not an Agency employee and therefore lacked standing to pursue a claim of discrimination through the 29 C.F.R. Part 1614 complaint process.
The instant appeal followed. Complainant, through her representative, contends that the Agency exercised extensive control over the manner and means by which Complainant performed her duties. Complainant argues that, at a minimum, she should be considered a "joint employee" of both GDIT and 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.2
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).
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), 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. Id.
Factors 1 - 7, 9 - 11 Indicate that Complainant May be a Joint Employee of the Agency
The record reflects that while GDIT hired Complainant to work at the Agency, Agency officials had significant control over her daily work (factor 1). It is undisputed that her work was performed on Agency premises with Agency equipment (factors 3-4). Complainant contends that she regularly attended and actively participated in Agency staff meetings, including meetings regarding the Agency's planning, programming, budgeting and execution system processes, as well as the Agency's annual budgeting and spending plans. Complainant also contends that the Chief Program Analyst, an Agency employee, directed her daily tasks and approved of her work. The Agency responded that while Complainant provided deliverables to that employee, daily supervision of Complainant was handled by GDIT's task manager and on-site supervisor. However, there is no indication in the record that the Agency did not have the right to assign additional projects as it saw fit (factor 6). Complainant acknowledges that GDIT scheduled and approved of her leave requests, but stated that it always did so in coordination with the Agency and it is undisputed by the Agency that it set the core hours for Complainant's work (factor 7).
The Agency remains active and in business (factor 11). There is also no indication that the work performed was not part of the regular business of the Agency (factor 10). In addition, the Agency contends that while the work assigned to Complainant was complex, it was not unique. It stated that in Complainant's absence, GDIT was able to shift the work to other GDIT employees without any disruption to the Agency (factor 2). The record also shows that Complainant was not in a position to hire or pay assistants (factor 9).
Complainant worked at the Agency for about three and a half years prior to her termination and contends the Agency intended for her to work throughout the duration of GDIT's five-year contract (factor 5). She asserts that her work duration was only cut short after she reported sexual harassment in the workplace. Complainant contends that on May 23, 2014, she reported the sexual harassment of a co-worker. On July 2, 2014, shortly after making this report, GDIT informed Complainant that her services were no longer needed and that she was terminated. Complainant states that she was not provided with any reasons other than her services were no longer required on the contract.
The Agency asserts that GDIT made the decision to terminate Complainant. However, the record supports a finding that Agency officials had substantial input and control over the decision (factor 1). The Commander of USAMMDA was reported by the EEO Counselor as stating that Complainant was "competent and did her job well." However, "due to a series of disruptive events that [Complainant] was involved in the workplace, the request to remove her from the contract supporting [the Agency] was placed." The record also contains a copy of an email from the COR/Acquisition Management Liaison Officer, an Agency official, to a GDIT official which states, in pertinent part, "[the Commander of USAMMDA] has asked me to convey to GDIT that he wishes to have [Complainant] removed from the contract supporting USAMMDA." In a statement provided by the Agency, the COR/Acquisition Management Liaison Officer confirmed that Complainant's "work performance was really good. However, [Complainant's] pattern of disruptive behavior in the workplace is the reason why the request for her removal from the contract supporting USAMMDA was placed to [GDIT]." Based on this evidence, we find that the Agency exerted considerable influence in Complainant's removal from her position, the every act which forms the basis of her claim of unlawful retaliation.
Factors 8, 12 - 13 Indicate that Complainant May be a Contractor
The Agency stated it paid GDIT a monthly contract fee for all contractors working under GDIT at the Agency. The Agency stated it was unaware of how GDIT paid its employees, including Complainant (factor 8). The Agency did not provide Complainant with retirement benefits, insurance, leave or workers' compensation, nor did it pay social security, state or federal taxes on behalf of Complainant (factors 12-13).
CONCLUSION
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position, especially with regard to the influence Agency officials had with GDIT over her termination, to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby 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 claim in accordance with 29 C.F.R. � 1614.108et 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 (M0815)
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, 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 (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, Director
Office of Federal Operations
February 11, 2016
__________________
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 Another 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). This factor is especially significant in termination cases.
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0120150262
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120150262