EEOC Appeal No. 0120161245
05-11-2016
Kenneth M. v. Dep't of the Air Force
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenneth M.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120161245
Agency No. 7I0J16001
DECISION
On February 4, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 7, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Physical Therapist with its 56th Medical Group, Luke Air Force Base in Arizona.
Complainant filed a formal complaint dated December 5, 2015, alleging that the Agency discriminated against him based on his race (Caucasian) when he was terminated on June 8, 2015.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency.
The instant appeal followed.
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.
Factors 1, 3 - 6, 9, and 11 Indicate that the Agency Jointly Employs Complainant
Complainant served the Agency full time. He had an Agency direct supervisor, who interacted with him daily. Counselor's Report, at 7 and associated statement by identified supervisor. This supervisor indicated that he gave Complainant feedback daily by talking to him. Complainant stated that the Agency supervisor provided him counsel and guidance on military procedure, unique aspects of physical therapy provided at Luke Air Force Base, and they discussed treatment approaches for conditions treated on the base. Complainant identified his staffing firm supervisor as the Director of Operations & Recruitment, and wrote that they interacted over the telephone once every one to two months. While the staffing firm provided Complainant his leave benefit, he stated that he submitted his time-off requests to his direct Agency supervisor for initial approval, and the staffing firm for final approval. The Agency required that whoever filled Complainant's position attend rehabilitation team meetings, seminars and quality assurance meetings, and there were dress standards. While the record does not show how Complainant was assigned individual patients, there is no indication therein that the staffing firm was involved - he had little contact with his staffing firm supervisor. (Factors 1, 7). Complainant worked on Agency premises using Agency equipment (Factors 3, 4). He served the Agency full time for almost a year prior to his termination (Factor 5). There is no indication in the record that Complainant had a role in hiring and paying assistants (Factor 9). The Agency is in the business of government (Factor 11).
Especially significant, because this case involves termination, is that the record shows the Agency had de facto power to terminate Complainant. The employment agreement between Complainant and his staffing firm indicates that he was hired to provide services at Luke Air Force Base. By memorandum dated June 8, 2015, to the staffing firm, an Agency official specifically directed that Complainant "be removed from [his] position permanently effective immediately for business ethics violations." The Agency went on to request that the staffing firm find a replacement for Complainant within 20 days.
Factors 2, 8, 10, and 11 Indicate that the Agency may not Jointly Employ Complainant
Complainant's job required a high degree of skill (Factor 2). The mission of the Agency is to provide for the defense of the United States - not healthcare (Factor 10). The staffing firm paid and took care of Complainant's compensation (Factors 8, 12 - 13).
Factor 7 Does Not Point in Any Direction
The employment agreement between Complainant and his staffing firm provides that he would work up to 40 hours weekly Sunday through Saturday. Complainant stated he worked Monday through Friday from 7:30 AM to Noon, and from 1 PM to 4:30 PM, but that he did not know who established his schedule, and learned of it during his staffing firm orientation. It is not clear from the record if the Agency was behind this schedule.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position, including the decision to terminate him, to qualify as his joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
The FAD is REVERSED.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et 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 (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
May 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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