0120113542
08-21-2013
Myra J. Calhoun, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Myra J. Calhoun,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113542
Agency No. ARGORDON11MAY02392
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 6, 2011, dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly determined that Complainant was not an Agency employee for the purposes of the 29 C.F.R. Part 1614 EEO complaint process.
BACKGROUND
Beginning in August 2009, Complainant worked for EPS Corporation (EPS) as a Network Specialist at the Agency's Communications-Electronics Command (CECOM), Training Support Division, Training and Development Branch, Networking Team, at Fort Gordon in Georgia.
On May 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (52) when, on April 22, 2011, she learned that she had not received a pay increase for 2009 and 2010. On June 13, 2011, Complainant amended her complaint to allege that the Agency discriminated against her on the basis of reprisal (filing of instant complaint) when, on June 9, 2011, she was terminated from her position.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that Complainant lacked standing to bring a complaint against the Agency because she was an EPS employee and not an Agency employee.
CONTENTIONS ON APPEAL
On appeal, Complainant argued that the Agency was the de facto employer who made key personnel decisions that EPS later implemented. Specifically, Complainant asserted that the Agency hired her, directed her activities, and greatly influenced - if not outright totally controlled - pay and other employee matters.
In opposition, the Agency argued that EPS maintained control over Complainant's employment during her time as a contractor at Fort Gordon. In addition, the Agency asserted that it did not have sufficient input into the manner and method of Complainant's work to qualify as a joint employer.
ANALYSIS AND FINDINGS
The Commission has applied the common law agency test to determine whether an individual is an agency employee. See Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Services, EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); see also Kereem v. Dep't of State, EEOC Request No. 0520110069 (Apr. 26, 2012). Specifically, the Commission will look to the following non-exhaustive list of factors: (1) the extent of the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (3) the skill required in the particular occupation; (4) whether the employer or the individual furnishes the equipment used and the place of work; (5) the length of time the individual has worked; (6) the method of payment, whether by time or by the job; (7) the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; (8) whether annual leave is afforded; (9) whether the work is an integral part of the business of the employer; (10) whether the work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. See Ma, EEOC Appeal No. 01962390. In Ma, the Commission noted that the common law test contains, "no shorthand formula or magic phrase that can be applied to find the answer ... [A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Id.
Furthermore, the Commission has recognized that a "joint employment" relationship may exist where both the agency and the staffing firm may be deemed employers. EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (Dec. 3, 1997) (Guidance). 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 maintain over a complainant's work. See Baker, EEOC Appeal No. 01A45313. 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 Ma criteria, whether or not the individual is on the federal payroll. See Guidance, Question 4.
Upon review of the record, we find that factors 1, 2, 4, 5, and 9 indicate that Complainant is an Agency employee. In contrast, we find that factors 3, 6, 8, and 10-12 indicate that Complainant is not an Agency employee. We will address each factor in detail below.1
Factors 1, 2, 4, 5, and 9 Indicate that Complainant is an Agency Employee
Regarding factors 1 and 2, we find that the Agency had the right to control the means and manner of Complainant's work performance and that Complainant's work was done under the direction of an Agency supervisor.
Specifically, in Complainant's 2009 performance evaluation, the Branch Chief provided comments on her performance, recommended that she obtain additional training, and signed the evaluation as her supervisor. In addition, in Complainant's 2010 performance evaluation, the Team Manager described her as "a valuable manager of the Networking Team and the Training and Development Branch," rated her performance on eight factors, stated that she "will be called upon and she has agreed to support other training missions outside of normal course curriculum," and signed the evaluation as her supervisor. Further, in an April 4, 2011 email to Complainant's Agency email address, the Branch Chief recognized her performance and wrote, "Great Job, your hard work is much appreciated! Thanks for representing the team in a positive light! Not that I expected any less." Moreover, in their interviews with the EEO Counselor, the Team Lead, the EPS Site Supervisor, and the EPS Project Manager acknowledged that a recommendation from the Agency played a role in EPS's approval of pay increases. Finally, in a January 31, 2011 email to Agency employees and EPS employees, the Branch Chief stated that: (a) nobody will be brought into the branch without his knowledge; (b) no pay increase or decrease will be made without his knowledge; (c) anything that affects his budget will come to him before it is sent to the Contracting Officer's Representative (COR); and (d) any questions regarding the credentials or qualifications of a recommended employee should come to him before it reaches the COR.
Based on the above, we find that the Agency managed Complainant's day-to-day work while she was at Fort Gordon. Although there was an EPS Site Supervisor at Fort Gordon, it appears that her role was limited to administrative matters and did not involve the substantive details of Complainant's work. When asked by the EEO Counselor to describe her role, the EPS Site Supervisor stated, "I manage evaluations, leaves, time, and travel."
Regarding factor 4, we find that the Agency furnished the equipment used and the place of work. Specifically, the record reflects that the Agency provided computers and necessary equipment for Complainant while she worked at Fort Gordon.
Regarding factor 5, we find that Complainant had worked at the Agency for almost two years when she filed her formal complaint. Specifically, the record reflects that Complainant began working at the Agency in August 2009 and filed her formal complaint in May 2011.
Regarding factor 9, we find that Complainant's work as a Network Specialist at CECOM was an integral part of the Agency's business. According to the Branch Chief's May 10, 2011 memorandum for the record, Complainant provided "Information Technology, NET (New Equipment Training) instruction to the Warfighter/Soldier." Such training of Agency employees would reasonably be a vital part of the Agency's work, as CECOM "provides The Critical Link to enable our Armed Forces' ability to achieve dominance on the battlefield by contributing to a globally-networked, agile and responsive Force." See The United States Army - CECOM - About CECOM, http://www.cecom.army.mil/aboutcecom.html (last visited August 20, 2013).
Factors 3, 6, 8, and 10-12 Indicate that Complainant is Not an Agency Employee
Regarding factor 3, we find that Complainant's position required a high level of skill or expertise because she provided technical instruction to Agency employees. Regarding factors 6, 8, 10, and 11, we find that the Agency did not pay wages, afford annual leave, provide retirement benefits, or pay social security taxes. Regarding factor 12, we find that the Agency and Complainant did not believe that they were creating an employer-employee relationship. Specifically, both parties acknowledge that EPS employed Complainant on a contract with the Agency.
Weighing of the Factors
After examining all the incidents of the working relationship between the parties as specified in Ma, we find that the Agency exercised sufficient control over Complainant's position to establish a de facto employer-employee relationship and to qualify as her joint employer. Considering the totality of the circumstances, the nature of the working relationship was such that the Agency retained a considerable degree of control over Complainant's job performance. As shown above, during their almost two-year working relationship, the Agency controlled the means and manner of Complainant's performance, supervised her work, and furnished the equipment used and the place of work. In addition, Complainant worked as a Network Specialist to provide technical instruction to Agency employees - an important part of the Agency's goal of having a "globally-networked, agile and responsive Force."
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND Complainant's complaint to the Agency for further processing in accordance with the Order below.
ORDER (E0610)
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 (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 (M0610)
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 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 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
__8/21/13________________
Date
1 We find that the record does not contain sufficient information to make a determination on factor 7. Although EPS issued Complainant the termination letter, the record is unclear as to what input, if any, the Agency had in the termination decision.
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0120113542
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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