0120082452
11-05-2008
Pablo Herrera, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Pablo Herrera,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082452
Agency No. ARREDSTON07DEC04687
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 4, 2008, dismissing his 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
Complainant worked at the agency's Aviation Engineering Directorate at
Redstone Arsenal, Alabama. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
disability (foot drop), and reprisal for prior protected EEO activity
under an EEO statute that was unspecified in the record when he was
removed from the agency, effective September 22, 2007.
The agency dismissed the claim for failure to state a claim on the
grounds that complainant was not a Federal employee, but an employee of
its contractor, Camber Corporation. On appeal, complainant argues that
he is a joint employee of the agency and Camber Corporation (Camber)
and that he therefore states a claim.
The Commission must determine whether the complainant was an agency
employee or applicant for employment within the meaning of Section
717(a) of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e-16(a) et. seq. The Commission has applied the common
law of agency test to determine whether an individual is an agency
employee under Title VII. 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).
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 worker accumulates retirement benefits; (11) whether
the "employer" pays social security taxes; and (12) the intention of the
parties. See Ma, supra. 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, under the Commission's Enforcement Guidance: Application of
EEO Laws to Contingent Workers Placed by Temporary Employment Agencies
and Other Staffing Firms, EEOC Notice No. 915.002 (December 3, 1997)
(hereinafter referred to as the "Guidance") (available at www.eeoc.gov.),
we have also recognized that a "joint employment" relationship may exist
where both the agency and the "staffing firm" may be deemed employers.
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
complainant's work. 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, supra at 11.
Complainant concedes that he was hired by Camber and is paid by them,
but he argues that he is a joint employee of Camber and the agency.
Complainant argues that the agency closely controlled his actions and
activities and that the specific actions to be taken and time frames for
performing them were controlled by the agency. Complainant also argues
that he worked at the agency facility, using equipment and databases
provided by the agency, and that he received mandatory training that
was prescribed by the agency. In addition, complainant maintains that
his duties were those of an agency Action Officer and that an agency
organizational chart "reflects that . . . [complainant] . . . reported to
[agency] employees, not employees of Camber." Complainant's Appeal Brief,
p. 2. Furthermore, complainant argues, he was required to inform the
agency of any planned absences and was closely supervised by agency
personnel, including supervision of his email and telephone usage.
Complainant next contends that agency personnel claimed that he had
been observed and overheard spending an excessive amount of time on
personal business during working hours. Complainant argues that, were
he an independent contractor and not a joint employee, how he spent his
work day would not be a legitimate matter of concern to agency personnel.
Complainant further contends that he was denied the chance to go on
a temporary duty assignment (TDY) and a conference and that agency
personnel were sent instead. He maintains that, had he been an
independent contractor, he would have been allowed to go to both the
TDY and the conference. He next argues that agency personnel had input
into Camber's job evaluation of complainant. In addition, he argues
that the skills required for the position are primarily utilized by the
agency and that there are no comparable jobs outside of the agency, and
that the work performed was an integral part of the agency's functions.
Complainant states that he was paid based on time spent, not by the
job, and that this is indicative of agency employee status. Finally,
he states that the agency had input on how he was terminated, and that,
while Camber afforded him annual leave, such leave could not be taken
without prior notification to and approval by agency personnel.
On its appeal brief, the agency argues that the evidence does not
support complainant's claims and that he should not be viewed as a joint
employee of the agency and Camber. Specifically, the agency argues
that the agency contract for technical support was made with Camber,
not with complainant, and that it provided for payment to Camber on
a fixed hourly basis for the type of work performed by complainant.
The agency contends that Camber administered discipline to complainant,
directed him to relocate from the agency worksite, and ultimately made
the decision to terminate him. In addition, the agency argues, agency
officials did not control the means and manner of complainant's work, and
that Camber was the sole administrator of complainant's leave approval,
discipline, and employment status. Furthermore, the agency argues,
complainant was only designated as an Action Officer in the agency's
computer system for purposes of gaining access to the system in order
to perform his assigned tasks, but that his claim that he served as an
agency Action Officer is "baseless." Agency Brief, p. 10. The agency
next argues that the organizational chart referred to by complainant
"clearly identifies complainant as a Camber employee." Id.
Complainant's annual performance evaluations were administered by
Camber, the agency contends, and it was complainant who "initiated
[agency personnel's] input to complainant's Camber supervisors." Id.
The agency denies that agency personnel contacted Camber personnel to tell
complainant that he must request permission prior to taking leave, or
directing Camber to remove complainant from the facility and eventually
terminate him. The agency argues that in his emails, complainant
identified himself as an employee of Camber. Regarding complainant's
contention that the agency provided the workspace and materials, the
agency argues that under the agreement with Camber, complainant could
work on or off-site and that the relationship between complainant
and Camber was a collaborative one and not one of close supervision.
Finally, the agency argues, it did not pay complainant, withhold his
taxes, or provide medical benefits, and that such functions were instead
undertaken by Camber.
Following a review of the record, the Commission finds that complainant
has not met his burden of establishing that the agency was a joint
employer of complainant. In this regard we note that, while complainant
received his assignments from an agency computer system, worked at the
agency facility using equipment and databases provided by the agency, and
was required to clear his use of leave with agency personnel beforehand,
the evidence does not establish that the agency had the requisite control
over complainant's actions and activities. Complainant argues that an
agency organizational chart shows that he reported to agency personnel
and not Camber, but he has presented insufficient evidence to rebut the
agency's contention that the chart in question merely reflects a chain
of communication, not a chain of authority. Furthermore, as the agency
points out, the chart identifies complainant as an employee of Camber,
not of the agency. As regards complainant's contention that had he
been an independent contractor, he would have been allowed to go on a
TDY and to a conference that agency personnel attended, we find such an
argument to be speculative. Indeed, the fact that he was not allowed to
attend while agency personnel were allowed to go tends to indicate that
complainant was not viewed as an agency employee or joint employee.
Finally, we note that, while complainant maintains that the agency
exercised sufficient control over him so that he should be viewed as a
joint employee, he has presented insufficient evidence to support such
a claim. In this regard we note that complainant has not presented
affidavits from other Camber employees who worked at the facility, or
from agency employees, to corroborate his contention that the agency
exercised significant control over his actions.
Finally, we find significant that the record indicates that Camber made
the actual decision to terminate complainant. While agency management
raised concerns with Camber regarding an alleged decline in the quality
of complainant's work and a lack of routine in complainant's schedule,
it appears that the agency did not have the ability to address these
matters directly with complainant, but could only present their concerns
to Camber. The record documents, for example, a June 2007 meeting
between agency officials and Camber personnel, in which these concerns
about complainant were raised and the Camber personnel represented that
they would to take steps to correct the problems.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that
complainant has not met his burden of establishing that the agency
exercised sufficient control over complainant to qualify as a joint
employer. Accordingly, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
November 5, 2008
__________________
Date
2
0120082452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082452