Lance Ross, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120070840 (E.E.O.C. May. 8, 2007)

0120070840

05-08-2007

Lance Ross, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.


Lance Ross,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice,

Agency.

Appeal No. 0120070840

Agency No. M06-0053

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision (FAD) dated November 17, 2006, dismissing his complaint

of unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

ISSUE PRESENTED

Whether the FAD properly dismissed the complaint for failure to state

a claim on the ground that complainant is an employee of an independent

contractor, not an agency employee.

BACKGROUND

In his complaint, complainant alleged that he was subjected to

discrimination based on his disability (diabetes) when from October 2005

to December 2005, he was suspended without pay for approximately 39 days

pending medical clearance of his glucose readings.

Complainant serves as a Court Security Officer (CSO) with the agency's

United States Marshal Service (USMS) in Denver, Colorado. He is an

employee of AKAL Security, Inc., which has a contract with USMS to

provide CSOs and other staff to protect the judiciary.

On October 17, 2005, a Judicial Security Division Reviewing Physician

ruled that complainant's medical status was deferred pending receipt

of the medical documentation. The Judicial Security Division is part

of the agency. The physician recommended that complainant not serve

as a CSO until he provided one month of glucose values reported by log

in a specified manner with related medical documentation. By memo

to complainant the next day, AKAL informed complainant that the agency

deferred his medical approval pending further documentation. It advised

that under the terms of its contract with the agency, it had to remove him

from CSO duties until he was deemed medically qualified by the agency.

The letter stated this meant AKAL had no alternative but to place him

on administrative leave without pay effective October 18, 2005.

Complainant submitted additional medical documentation. On December

2, 2005, the Judicial Security Division Reviewing Physician found his

medical documentation acceptable, and cleared him to return. By letter

dated December 12, 2005, the agency's Judicial Security Division advised

AKAL that complainant may return as a CSO pursuant to its review of his

medical information.

The FAD dismissed the complaint for failure to state a claim on the

grounds that complainant is an employee of AKAL, not the agency.

29 C.F.R. � 1614.107(a)(1) and .103.

On appeal, complainant argues through counsel that the agency and

AKAL are his joint employers, and hence his complaint states a claim.

The agency does not respond to complainant's appeal brief.

ANALYSIS AND FINDINGS

The matter before us is whether the agency properly dismissed

complainant's complaint. 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 must determine whether complainant is an agency employee

or is connected to the agency with "aspects of the relationship that are

indicative of an employer/employee relationship." Longergan v. Department

of Veterans Affairs, EEOC Request No. 05970406 (July 10, 2000).

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:

� The employer has the right to control when, where, and how the

worker performs the job.

� The work does not require a high level of skill or expertise.

� The employer furnishes the tools, materials, and

equipment.

� The work is performed on the employer's premises.

� There is a continuing relationship between the worker and the

employer.

� The employer has the right to assign additional projects to the

worker.

� The employer sets the hours of work and the duration of

the job.

� The worker is paid by the hour, week, or month rather than the

agreed cost of performing a particular job.

� The worker does not hire and pay assistants.

� The work performed by the worker is part of the regular business

of the employer.

� The worker is not engaged in his/her own distinct occupation or

business.

� The employer provides the worker with benefits such as insurance,

leave, or workers' compensation.

� The worker is considered an employee of the employer for tax

purposes (i.e., the employer withholds federal, state, and Social Security

taxes).

� The employer can discharge the worker.

� The worker and the employer believe that they are creating an

employer-employee relationship.

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) (available at

www.eeoc.gov).

Under the Commission's Enforcement Guidance: Application of EEO

Laws to Contigent Workers Placed by Temporary Employment Agencies and

Other Staffing Firms (December 3, 1997)(available at www.eeoc.gov.), we

recognize that a "joint employment" relationship may exist where both the

agency and the staffing firm may be joint employers. There are different

types of staffing firms. Those that contract with a client to perform

a certain service on a long-term basis and place its own employees,

including supervisors, at the client's work site to carry out the service

are contract firms Examples of contract firm services include security,

landscaping, janitorial, data processing, and cafeteria services.

Id. at Introduction section.

Clients of contract firms, including the federal government, qualify

as employers of workers assigned them if the clients have sufficient

control over the workers, regardless of whether the worker is on the

federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal

No. 01A45313 (March 16, 2006). For example, the client is 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 Contigent Workers

Placed by Temporary Employment Agencies and Other Staffing Firms,

Staffing Service Work Arrangements section. The guidance provides the

following example regarding a contract firm.

Example 5: A staffing firm provides landscaping services for clients

on an ongoing basis. The staffing firm selects and pays the workers,

provides health insurance, and withholds taxes. The firm provides the

equipment and supplies necessary to do the work. It also supervises the

workers on the clients' premises. Client A reserves the right to direct

the staffing firm workers to perform particular tasks at particular times

or in a specified manner, although it does not generally exercise that

authority. Client A evaluates the quality of the workers' performance

and regularly reports its findings to the firm. It can require the

firm to remove the worker from the job assignment if it is dissatisfied.

The firm and the Client A are joint employers.

Id., at Question 2. The FAD reasoned that the agency's contract with

AKAL provided AKAL would provide all management, supervision, manpower,

material, supplies, and equipment, except as otherwise provided, and

plan, schedule, coordinate, and assure effective performance of security

services at the place of performance in accordance with the contract.

The FAD found that complainant was not directly supervised by the agency,

but AKAL personnel, including site supervisors. It found that AKAL pays

complainant's salary and benefits, and withheld his taxes. It concluded

that only AKAL had authority to discharge complainant and it was never

the intention of the agency for him to be an agency employee.

The FAD cites to five Commission decisions in support of its finding

that complainant is an independent contractors, not employees.

All worked for AKAL and served as CSOs for the agency. The decisions

were Walton v. Department of Justice, 01A31607 (September 8, 2003);

Williams v. Department of Justice, 01A30630 (March 19, 2003); Voeltz

v. Department of Justice, 01A30346 (March 5, 2003); Lamb v. Department of

Justice, 01A30378 (May 22, 2003) and Chiabaudo v. Department of Justice,

01A30278 (February 11, 2003). In Lamb, however, the Commission found

there was insufficient information in the record to determine whether the

complainant was an agency independent contractor or employee, and remanded

the matter back to the agency. In the brief decision of Chiabaudo,

the Commission relied largely on the provision of the contract and

its implementation like the one recited in the instant FAD, noting the

complainant did not dispute any of this. In Williams and Voeltz, the

Commission largely reasoned that the complainants were paid, supervised

and disciplined by AKAL employees, that the equipment necessary to do

their job was supplied by AKAL, and that the complainants identified

themselves as employees of AKAL. In Walton, the Commission relied on its

prior case precedent, recited above. However, in an unreported ruling,

a federal district court determined that the plaintiff in Walton was

jointly employed by the agency and AKAL. Walton v. U.S. Marshals Service,

2004 WL 1924176 (unreported, N.D.Cal. 2004).

On appeal, complainant argues that the agency is involved in the

hiring process of CSOs, provides them orientation when they start work,

supervises their work, provides equipment to CSOs to do the job, sets

the qualifications and responsibilities of CSOs, sets their pay ranges,

asserts the right to direct activities of CSOs, and has the authority

to remove a CSO from work.

In International Union v. Clark, 2006 WL 2598046 (D.D.C. 2006),

the court ruled that contrary to the contention of the United States

Marshals Service, Court Security Officers (CSOs) were jointly employed

by the agency and the staffing firm contracting companies (one of which

was AKAL). The agency contended that CSOs were employees of companies

with which it contracted to provide court security services. The contract

companies hired and paid the salaries and benefits of the CSOs, withheld

taxes on their behalf, maintained time and attendance records, and had

the power to terminate a CSO. Moreover, the contract companies provided

site supervisors to provide supervision of day to day operations of CSOs.

Applying a joint employment test, which asks whether the agency maintained

for itself "sufficient control of the terms and conditions of employment"

of the CSOs, the Court ruled the agency jointly employed the CSOs,

i.e., the CSOs were employees of the agency and their contract company.

Similarly, the test applied herein to determine employment status turns

on whether the employer controls the means and manner of the worker's

work performance. EEOC Compliance Manual, Section 2: Threshold Issues,

2-III.A.1, page 2-25.

In finding the agency was a joint employer, the Court made the following

observations: The agency set the qualifications CSO candidates must

meet, including at least three calendar years of verifiable experience

as a certified law enforcement officer or its military equivalency.

It set the medical, physical, and weapons proficiency standards CSOs

must meet. After the staffing firms completed initial investigations,

the agency performed background checks on all CSO candidates. After a

CSO is eligible to work under contract, the agency conducted an intensive

orientation residential training program, lasting two to three days,

which all CSOs must attend. The agency governed CSOs by setting

numerous performance standards for them, such as abiding by all agency

ethical standards regarding conflict of interest, outside activities,

use of federal property; reporting violations of prescribed rules and

regulations to an appropriate supervisor or manager, prohibiting them

from discussing duty assignments and delaying or refusing to carry out

a proper order of a supervisor or other official having responsibility

for their work, engaging in any activity that would adversely affect the

reputation of the agency, and so forth. All the above is also true under

the agency's contract with AKAL, which had many provisions identical or

like those recounted by the Court.

While the agency asserted that it supplied equipment for the job, except

as otherwise provided, the court noted the agency supplies the essential

equipment for the job, including firearms, ammunition, handcuffs,

and radios. The same is true under the contract with AKAL.

In finding that the agency was a joint employer of CSOs, the court went

on to find that while much of the day to day supervision of CSOs falls

to agents of the contractors, the agency retained virtually exclusive

control over the work CSOs must perform, the time, place, and manner in

which it must be performed, and the number of individuals performing

it at any given time. It explained that the agency could alter the

daily assignments of CSOs, requiring contractors to shift personnel

from one duty station to another or assign them to special projects.

The court noted that the agency can require the contractors to assign

CSOs to overtime duty and provide additional personnel for particular

periods of time, and that in cases of emergencies, the agency reserved

the right to place individual CSOs under its direct control. The same

is true under its contract with AKAL.

The court found that perhaps the most important factor in making the

agency a joint employer was its power, on a case by case basis, to

decide whether any particular CSO can be removed from the contract for

failure to meet the qualifications of the job. The agency's contract

with AKAL contains such a provision. In concluding that the agency

jointly employed CSOs, the Court factored in that the agency's power

to decide whether a particular CSO could be removed from the contract

for failure to meet the qualifications of the job was tantamount with

removal power since an adverse agency determination in most cases of

a CSO resulted in termination by the contractor. The Court noted that

this was a rare case where the contract workers performed the critical

mission of the agency, i.e., security, and such individuals would rarely

be qualified to assume other roles, such as secretarial or support job,

at the contractor's headquarters. Complainant, as a CSO, performed

the critical mission of the agency, i.e., security. Complainant was

suspended from serving as a CSO with no pay for about 39 days based

on the agency's determination that he did not show he was medically

qualified to perform as a CSO during that time.

Other courts have found that the agency is a joint employer of CSOs

with AKAL. See McMullin v. Ashcroft, 337 F.Supp.2nd 1281, 1293-1294

(D. Wyo. 2004) and Walton v. U.S. Marshals Service, 2004 WL 1924176

(unreported, N.D.Cal. 2004). In making this finding in Walton,

the court noted that consistent with their weighty security mandate,

CSOs relationship with the agency is significantly intertwined, and

finding no joint employer relationship would unfairly allow the agency

to affirmatively act behind the force of contract, and unjustly limit

the plaintiff's access to the true source of her termination.

Based on the legal standards and criteria set forth herein, we find that

the agency exercised sufficient control over complainant's position to

qualify as his employer for the purpose of the EEO complaint process.

Based on the factual information in the record, we distinguish the cases

of Walton v. Department of Justice, 01A31607 (September 8, 2003); Williams

v. Department of Justice, 01A30630 (March 19, 2003); Voeltz v. Department

of Justice, 01A30346 (March 5, 2003); Lamb v. Department of Justice,

01A30378 (May 22, 2003) and Chiabaudo v. Department of Justice, 01A30278

(February 11, 2003). We also, significantly, take note of recent court

decisions recited above.

Accordingly, the FAD's dismissal of complainant's complaint for failure

to state a claim is reversed.

ORDER (E0900)

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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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 8, 2007

__________________

Date

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0120070840

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070840