0120172545
01-05-2018
Michell B.,1 Complainant, v. Dan Coats, Director, Office of the Director of National Intelligence, Agency.
U.S. EQ0UAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michell B.,1
Complainant,
v.
Dan Coats,
Director,
Office of the Director of National Intelligence,
Agency.
Appeal No. 0120172545
Agency No. 2017-F-004
DECISION
On July 20, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 22, 2017, dismissing her complaint alleging 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 was first an applicant or employee with CENTRA Technology, Inc. (staffing firm 1), and then an applicant with IBM (staffing firm 2) seeking to serve the Agency variously at its National Intelligence Council and National Counterterrorism Center.
On March 1, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected EEO activity under Title VII:
1. By denying staffing firms 1 and 2 requests, on her behalf, for "crossover" clearances (reciprocal acceptance of access eligibility determinations under the Department of Defense and/or Intelligence Community Policy Guidance), resulting in her not being able to serve at Agency facilities and thus denying her employment. Specifically:
a. on March 10, 2016, staffing firm 1 submitted a crossover request for her to support National Intelligence Council conferences,
b. on July 25, 2016, staffing firm 2 submitted a crossover request for her to support the National Counterterrorism Center, and
c. on October 15, 2016, staffing firm 2 submitted a crossover request for her to support the National Counterterrorism Center,2
all of which were denied.
The Agency dismissed Complainant's complaint for failure to timely initiate EEO counseling and failure to state a claim. It reasoned, in relevant part, that Complainant did not initiate EEO counseling until November 30, 2016, beyond the 45-calendar day time limit, that she was not an applicant to be an Agency employee, and that the Commission does not have jurisdiction to review the substance of a security clearance determination. The instant appeal followed.
ANALYSIS AND FINDINGS
Timeliness
Complainant argues that prior to her appeal she mistakenly represented that issue 1(c) occurred on October 15, 2017, but it was on October 17, 2016, within the 45-calendar day time limit. She submits email correspondence between her and staffing firm 2 verifying this. Specifically, on October 17, 2017, staffing firm 2 wrote Complainant that earlier that day it submitted a crossover clearance request to the Agency which was formally rejected in 45 minutes, "record" fast.
In opposition to the appeal the Agency argues that Complainant should not be permitted on appeal to correct the date issue 1(c) occurred because she had an ample opportunity to do so previously and did not despite being asked by the EEO counselor to explain her untimeliness.3 The Agency also argues that since the Agency denied two prior crossover requests made on behalf of Complainant, which she believed was discriminatory, she should have had a reasonable suspicion of discrimination.
Given the persuasive documentary evidence showing that issue 1(c) occurred on October 17, 2016, we exercise our discretion to allow Complainant on appeal to correct what is akin to a typographical error she made below. We find the Agency's argument regarding reasonable suspicion unpersuasive. Issue 1(c) is a discrete event, and Complainant initiated EEO counseling within 45 days. Further, to the extent that the Agency is arguing that issue 1(c) is not a new event, but merely a reiteration of prior denials, we disagree. In an October 16, 2016 email to IBM Complainant asked if it would make another crossover request since she recently learned that, after a delay, the Department of Defense favorably adjudicated her Top Secret/Sensitive Compartmented Information (TS/SCI) clearance, a possible indication that other requests might now be approved. Given these changes in circumstances and the length of time between the events in issues 1(b) and 1(c), we find that the Agency's third denial should not be viewed as a reiteration of the prior denials. Complainant, who is represented by counsel, does not argue that issues 1(a) and 1(b) are timely, and we see no reason to disturb the Agency's finding that they were untimely counseled. Issues 1(a) and 1(b) are dismissed.
Failure to State a Claim - Security Clearance
The Commission does not have jurisdiction to review an agency's determination on the substance of a security clearance decision. Policy Guidance on the Use of the National Security Exception Contained in � 703(g) of Title VII of the Civil Rights Act of 1964, as Amended, EEOC Notice No. N-915-041 (May 1, 1989)(Guidance); Dep't of the Navy v. Egan, 484 U.S. 518, 529 (1988). Section 703(g) is an affirmative defense to a charge of discrimination. However, the legislative history of � 703(g) makes it clear that the Commission is not precluded from determining whether the grant, denial or revocation of a security clearance is conducted in a nondiscriminatory manner. Guidance.
On appeal, Complainant argues, as she alleged in her EEO complaint, that she is not challenging the substance of a security clearance decision - she has a security clearance elsewhere and no Agency has denied her a clearance via adjudication. The Agency counters that by challenging its denial of staffing firm 2's crossover request on her behalf, Complainant is seeking a review of its assessment of the derogatory information contained in her security file (housed in another agency), a security clearance determination. We disagree. Complainant contends that she already has the security clearance required to work at the Agency, but it won't apply reciprocity to utilize it based on her sex and reprisal for prior EEO activity. Based on what is currently in the record, we find that this goes to procedure, not substance. Accordingly, the Commission has jurisdiction to review issue 1(c).
Failure to State a Claim - Joint Employment?
The remaining matter before us is whether the Agency properly dismissed issue 1(c) for failure to state a claim on the basis that Complainant was not an applicant for employment with the Agency. 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 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)4; 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.
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.
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. 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.
By letter dated July 7, 2016, staffing firm 2 offered Complainant the position of Senior User Consultant, with a monthly salary and the opportunity to participate in its benefits, including health care. The offer was contingent on Complainant successfully obtaining and maintaining proper security clearances, as necessary for work assignments, which Complainant alleged was to support the Agency's National Counterterrorism Center.5
In opposition to the appeal the Agency argues that it only learns the identity of the contract employee after they report to duty. It argues that since it is not even aware of what contract position staffing firm 2 intended to fill in association with its crossover clearance request on behalf of Complainant, it is impossible to conduct an analysis of common law control factors. On appeal, Complainant argues that by denying staffing firm 2's request for reciprocity, the Agency determined that she would not be permitted to work on the contract - controlling her fate as an applicant, a decisive role. She argues that since serving the Agency at the National Counterterrorism Center would require that she work onsite in a sensitive compartmentalized information facility (SCIF), the Agency would have control of where she worked and her equipment and tools, and could force staffing firm 2 to remove her from the contract serving the Agency. While the scant record does not establish that staffing firm's 2's alleged proposed assignment for Complainant to support the Agency's National Counterterrorism Center would require her to work in an Agency SCIF, for purposes of determining whether Complainant's complaint at this point states a claim, we find that it is more likely than not that the Agency had and would have sufficient control over Complainant's employment to be her common law joint employer. Clearly, the Agency had the power to deny her request for crossover clearance and a security clearance was necessary to be hired into the position in question. Complainant's unrebutted claim at this point is that the Agency would require her to work onsite, and more likely than not with a level of clearance, secrecy and security that the Agency would need to have control over her work. These findings on control factors are not merits determinations - they are only to decide if the control factors concerning issue 1(c) are sufficient to state a claim under the 29 C.F.R. Part 1614 EEO complaint process.
The FAD is MODIFIED. The Agency shall comply with the Order below.
ORDER (E1016)
The Agency is ordered to process claim 1(c), as numbered and identified in this decision, 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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 5, 2018
__________________
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 In her complaint, Complainant made other allegations that the Agency dismissed. Complainant, who on appeal is represented by counsel, explicitly does not appeal the dismissal of the other allegations. We have made small changes to the language in the above issue to better capture Complainant's claim.
3 In her report the EEO counselor wrote that Complainant answered that she thought the problem with her security clearance would get resolved.
4 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov.
5 In her report, the EEO counselor indicated that Complainant was working for staffing firm 1 serving the National Defense University, Institute for National Strategic Studies as a Visiting Military Fellow. The record does not reflect when this assignment started or whether staffing firm 2 is in any way is connected to staffing firm 1 regarding this assignment.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172545
2
0120172545