0120171215
06-22-2017
Millicent H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Millicent H.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120171215
Agency No. ARHQOSA16AUG04208
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated December 23, 2016, dismissing a formal 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In 2014, after nine years of service, Complainant retired as a Captain from the U.S. Army. Thereafter, Complainant worked as a contractor with CACI-Wexford, Inc. (hereinafter "CACI"), assigned to the Agency's Joint Improvised Threat Defeat Organization (JIDO) located in Washington, D.C.
While deployed in Germany, Complainant was sexually assaulted by her supervisor. In July 2015, she checked herself into a month-long treatment facility for post-traumatic stress disorder, as well as for an eating disorder. She later went to a second treatment facility for two months. According to Complainant, both her CACI and Agency supervisors were aware of her mental health treatment following the assault.
Following an investigation into the sexual assault, CACI demoted the supervisor and deployed the supervisor overseas. In May 2016, CACI directed Complainant to notify the contractor's Facility Security Officer (FSO) about her mental health treatment. The FSO questioned Complainant about the assault, her treatment, and the investigation. In mid-July 2016, CACI placed the resulting Incident Report in Complainant's Joint Personnel Adjudication System (JPAS), which is a master repository for the personnel security management of all Department of Defense employees and contractors.
After reviewing the Incident Report, the Agency's JIDO Security Officer concluded the report was accurate and that Complainant "should not be read-on to TS/SCI2 information." Consequently, Complainant's access to the Agency's facility, JIDA classified IT systems and information ceased. CACI placed Complainant on administrative leave for 12 weeks and, in October 2016, terminated her due to the Agency's suspension of her SCI access.
Believing that the Agency's use of her non-reportable information to suspend her SCI access was discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, on October 7, 2016, Complainant filed a formal complaint based on sex and disability.3
The Agency dismissed the complaint for failure to state a claim. The Agency reasoned that Complainant lacked standing. In a brief decision, the Agency, without analysis, "determined that [Complainant] is not a covered Agency 'employee' for the purposes of filing an EEO complaint", followed by a listing of ten factors.
Complainant filed the instant appeal. On appeal, Complainant argues that the Agency should be considered a joint-employer because she worked exclusively at the Agency's facility and used Agency equipment. Further, Complainant contends that Agency managers participated in her yearly assessments, controlled her assignments, and had the authority to order CACI's onsite-supervisor to terminate her. Additionally, Complainant challenges the accuracy of CACI's Incident Report and the Agency's consideration of it. According to Complainant, information regarding her sexual assault and mental health was not reportable for security clearance purposes, pursuant to numerous Agency policies.4
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed the instant 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 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);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 each exercises 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.
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. 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 mariner 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, as noted above, the Agency's decision failed to reflect an analysis of the many factors to be considered. We find, however, that the record is adequately developed to conduct a proper analysis. Additionally, we note that in its response to Complainant's appeal, the Agency proffers arguments which encompass many of the factors.
The parties do not dispute that Complainant performed her job at an Agency facility, using equipment provided by the Agency. Complainant does not challenge the Agency's assertion that CACI set Complainant's rate of pay, provided her with payment, and processed her leave requests. The Agency did not pay taxes or provide benefits for Complainant
However, as to the means of supervision, the parties disagree. Complainant acknowledges that her first-line supervisor was a CACI employee, i.e. onsite-supervisor. Complainant asserts, however, that her second-line supervisors were the Agency's JIDO Branch Manager and Deputy Branch Manager. Regarding work hours, the Agency contends that CACI set Complainant's hours. Yet, CACI was required to comply with the hours of the facility and the Agency's required core hours. Therefore, we find that the Agency exerted control over Complainant's work hours. Similarly, with respect to evaluations, CACI issued yearly assessments, but the Agency did provide written input.
A significant factor in determining whether an agency is an employer is whether it has the power to terminate an employee. This factor is indeed significant in the instant case, as Complainant's claim concerns her removal. An agency has de facto power to terminate a worker where cutting off her services in most cases results in the removal of the worker by their staffing firm employer. International Union v. Clark, 2006 WL 2598046, 18 AD. Cases 932 (D.D.C. 2006), EEOC Appeal No. 0120090933 (United States Marshals Service power to decide whether a particular Court Security Officer (CSO) could be removed from the contract for failure to meet the qualifications of the job was tantamount to removal power since an adverse agency determination against the CSO in most cases resulted in termination by the contractor). Here, when the Agency's JIDO Security Officer removed her access to SCI, he also removed her access to the Agency facility. When she could no longer report to the worksite, CACI eventually terminated her.
Therefore, based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency did exercise sufficient control over Complainant's position to qualify as her joint employer for the purpose of the EEO complaint process.
Finally, we note that in addition to reiterating its belief that it should not be considered a joint-employer, the Agency, for the first time on appeal, argues that the Commission lacks the authority to review its decision to deny Complainant access to SCI. We reject this argument, finding that the essence of the claim is Complainant's severance from employment, as discussed in detail above. Contemporaneous with this argument, the Agency asserts further that the FSO made his decision regarding Complainant in a "non-discriminatory manner." The merits of the underlying claim, however, are not presently before us.
CONCLUSION
The Agency's decision to dismiss the complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
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 is 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 is 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 (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
June 22, 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 Sensitive Compartmented Information
3 Complainant also filed a complaint against CACI in August 2016.
4 Complainant provides a copy of a September 4, 2012 Department of Defense Memorandum which states, in pertinent part, ". . . officials such as security managers, commanders, or supervisors are prohibited from asking the applicant for additional information regarding listed mental health counseling." Further, "[t]his policy applies to all types of mental health counseling, including any counseling sought as the result of a sexual assault."
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