0120150914
01-13-2017
Lu T.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lu T.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120150914
Agency No. 14-0132-CH
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 3, 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 was a Secretary in a corporate entity identified as Kairos Consulting Worldwide (hereinafter referred to as KCW) working under a contract with the Agency. Complainant worked at the Agency's New Brunswick National Laboratory (NBL) in Argonne, Illinois.
On August 28, 2014, Complainant filed a formal EEO complaint claiming the Agency subjected her to discrimination on the basis of race (African American) when she was reassigned from her position as a secretary at NBL and transferred to work at the Agency's Office of the Manager and Acquisitions. Complainant alleges that a named white female secretary, also from KCW, was permitted to remain at NBL.
The record reflects that prior to June 25, 2014, Complainant's duty station was at the NBL under its contract with KCW. NBL had three secretaries: Complainant, another contractor provided by KCW (white female), and an Agency employee (Hispanic female). According to Complainant, the NBL's acting director made the decision to terminate her contract. As a result, KCW transferred Complainant to another contract with the Agency and, on June 25, 2014, Complainant's duty station was moved to the Chicago Science Building 201 in Argonne, Illinois.
In its December 3, 2014 final decision, the Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency determined that Complainant was not a Federal employee, and that she was instead a contractor, not covered by Federal sector complaint process.
The instant appeal followed.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed the formal complaint for failure to state a claim on the basis that Complainant 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 � 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 recently 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 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 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, materials, 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-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. 020131148 (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 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 American, 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.
In the instant case, the Agency's decision reflects an analysis of the many factors to be considered.
As noted above, Complainant performed her Secretary duties at the Agency's NBL, which she held since 2010. Her duties entailed providing administrative support. The record indicates that KCW was responsible for Complainant's work schedule, salary, annual leave, sick leave insurance, retirement benefits and tax documentation. We note that, in her formal complaint and other documents, Complainant identified herself as a KCW employee. While KCW employed Complainant, she used Agency equipment to perform her duties, and worked on Agency premises. The record shows that KCW, in coordination with the Agency personnel, managed all of Complainant's work assignments and monitored her work performance.
The thrust of Complainant's complaint concerns her reassignment from the NBL to the Chicago Science Building. In her formal complaint, Complainant stated that she was notified by the KCW Human Resources Coordinator "who indicated that she was informed by [Agency Contracting Representative] for the [KCW] contract and Human Resources Director of SC-CH, that a decision was made to end my contract with NBL. She indicated that based on budget constraints, it was determined that NBL could only retain one person under the [KCW] contract and that person would be [a named female KCW contractor]. When I asked why it was determined that my contract would be terminated vs. [the named female KCW contractor], she indicated that she had asked the same question three times and was given no specific reason."
The record contains a copy of the KCW Managing Principal's response to the EEO counselor questions about Complainant's work status. The KCW Managing Principal stated that Complainant "provides administrative support to individuals, groups or teams, as needed. The administrative tasks required for this work have not changed. The complainant employee is providing support for a different group in a different building. Per the terms of the contract, the Agency is able to move Contractor employees as needed to support different teams as needed, as long as the work remains administrative in nature."
Here, we find that the Agency's control over Complainant's position was essentially limited to where she performed her duties. Under the facts of this case, this alone is insufficient to confer joint employer status on the Agency. Therefore, based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process.
CONCLUSION
The Agency's final decision, dismissing the formal complaint for the reasons discussed herein, was proper and is AFFIRMED.
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 (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
January 13, 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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