0120131619
09-05-2013
Robin Cashwell, Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Bureau of the Census), Agency.
Robin Cashwell,
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Appeal No. 0120131619
Agency No. 63-2012-01981
DECISION
On March 20, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission from a final Agency decision (FAD) dated January 7, 2013, which she received on February 21, 2013, dismissing her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant with NFF, Inc., a subcontractor of Wyle Information Systems, LLC, to serve the Agency as a Lotus Notes Administrator (email) in Suitland, Maryland. The position was located in the Census Bureau's Telecommunications Office (TCO).
Complainant filed a formal complaint dated September 19, 2012, alleging that the Agency discriminated against her based on her race (African-American), sex (female) age (44), and reprisal when she was not hired around January 23, 2012, based on an unfavorable suitability determination.
The Office of Personnel Management (OPM) conducted a pre-appointment background investigation. A security specialist with the Census Hiring and Employment Check Office (CHEC) indicated it came back unfavorable. CHEC was also involved in the pre-appointment background check, but the extent of its role is unclear. On January 12, 2012, the security specialist directed the Agency's Contracting Officer's Technical Representative to inform the contracting company that Complainant was unsuitable to work on a Census Bureau contract. Thereafter, Complainant was not hired.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was an applicant for employment with NFF, Inc., not the Agency. The instant appeal followed.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. 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.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. 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).
The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers.
A federal agency, as a client of a staffing firm, may qualify as an employer of a worker assigned to it if it has sufficient control over the worker, regardless of whether the worker is on the federal payroll. Id. and Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2. The guidance provides the following example regarding joint employment.
Example 1: A temporary employment agency hires a worker and assigns him to serve as a computer programmer for one of the agency's clients. The agency pays the worker a salary based on the number of hours worked as reported by the client. The agency also withholds social security and taxes and provides workers' compensation coverage. The client establishes the hours of work and oversees the individual's work. The individual uses the client's equipment and supplies and works on the client's premises. The agency reviews the individual's work based on reports by the client. The agency can terminate the worker if his or her services are unacceptable to the client. Moreover, the worker can terminate the relationship without incurring a penalty....
In these circumstances, the worker is an employee who is jointly employed by the client and temporary employment agency. Id. at Questions 1 and 2.
On appeal, the Agency argues that it did not exercise control over Complainant or the position she sought. It avers that Complainant did not apply for employment with the Agency and her application for employment was not submitted thereto and it had no influence over the contractor's hiring procedures and determinations. In support, the Agency points to the EEO counselor's report, which indicates an Agency official who worked in acquisitions stated employees of the contractor are supervised and directed by the contractor, and the government does not get involved in matters between the contractor and their employees. It also points to the following language in the contract between the Agency and general contractor:
The Contractor shall be responsible for employing qualified personnel to perform the services required by this Contract...[and] [t]he Contractor, at its own expense, shall provide and maintain during the entire term of the task order, insurance necessary to cover his/her personnel's needs....
A review of the contract between the Agency and general contractor indicates that the Agency exercised more control than it avers. Under the contract, which started in July 2007, all contractor staff provided under the task order were subject to Agency review and approval. Under the contract, the incumbent of the position of "Notes Mail Administrator," likely the same job for which Complainant applied, is deemed "key personnel." The contract provides that the contractor shall make no substitutions of key personnel without the approval of the government unless the substitution is necessitated by illness, death, or termination, and the contractor shall notify the Agency within 3 business days after the occurrence of any of these events. It further provides that within the initial 7 day business period, the contractor shall provide the Agency the following information:
...a detailed explanation of the circumstances necessitating the proposed substitutions, complete resumes for the proposed substitutes, and any additional information requested by the [Agency]....Proposed substitutes should have comparable qualifications to those of the persons being replaced. The [Agency] will notify the Contractor within 10 business days after receipt of all required information of the decision on substitutions....
While the Agency argues that the contractor is responsible for its employees work schedules, the contract provides that Notes Mail Administrators work "normal hours," presumably the same hours as Agency employees who are being supported, and must be available for emergency response 24 hours a day all year. Under the task order, federal holidays are observed. Most work is performed at Agency locations, and all off-site work must be approved in advance by the Agency. The Agency provides furniture, telephones, computer equipment, software, and supplies. If travel is necessary and authorized by the Agency, it is reimbursed by the Agency under set rules and rates.
There are also factors pointing in the direction of the Agency not being a joint employer, i.e., the position requires a high level of skill or expertise, the contractor pays the employees, and is responsible for providing insurance for them.
Based upon a review of the record, we find that there is not enough information in the record on whether the Agency has sufficient control over the position to qualify as a joint employer. In looking into factors of control, the EEO counselor solicited information from an Agency acquisitions person, and obtained a copy of the contract between the general contractor and the Agency. A review of cases examining control reveals that the language in the contract and what staff in an Agency contracting office believe is occurring often do not reflect the realities on the ground -- what actually occurs in the workplace where the work is being performed. The order below will set out guidance for the Agency on conducting a supplemental investigation.
Complainant disputes the assessment of her background investigation/pre-employment check. On appeal, the Agency argues that the complaint should be dismissed because it is merely a collateral attack on the background check process and its undesired results. We disagree. The complaint regards the Agency allegedly discriminating against Complainant when she was not hired. This states a claim.
Complainant argued that her complaint was not properly processed. After a review of the record, we find that the Agency properly processed her complaint.
The FAD is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER
The Agency is ordered to take the following actions:
Conduct a supplemental investigation on whether it had sufficient control over the position for which Complainant applied to be a joint employer. In so doing, the Agency shall take affidavits or declarations from Agency and contractor management and staff who are in a position to know the realities on the ground for Lotus Notes Administrator(s), e.g., does Agency management or staff make any assignments to them and/or provide guidance or regular oversight on tasks Lotus Notes Administrator(s) perform, do Agency management or staff provide input into evaluations of Lotus Notes Administrators the contractor writes, do Lotus Notes Administrator(s) need to get the approval, formally or informally of Agency management or staff before taking leave, and so forth. People in a position to know are likely those who work with the Lotus Notes Administrator day to day in the same TCO work unit, and the applicable Lotus Notes Administrator. The Agency shall gather information on whether the contractor has onsite supervisors, and if so, the nature and amount of supervision they provide to the Lotus Notes Administrator(s) -- how much contact (daily?), how much guidance they provide, do they assign work, and if so, the nature of this (in general, in detail, regularly, daily?), and so forth. The Agency shall gather information on whether the Agency, the contractor, or both provide training to Lotus Notes Administrators, and the nature of such. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide her an opportunity to respond, and include her response in the supplemental investigation.
Thereafter, the Agency shall accept the complaint, or procedurally dismiss it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.
The current issue in Complainant's complaint is whether the Agency discriminated against her based on her race (African-American), sex (female) age (44), and reprisal when she was not hired around January 23, 2012, based on an unfavorable suitability determination.1
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented, including a copy of the acceptance letter or FAD, as applicable.
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
September 5, 2013
__________________
Date
1 The Agency's definition emphasized Complainant not being cleared, and did not include the bases of sex and reprisal. The above more accurately captures the claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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