0120171101
01-19-2018
Samuel C.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Samuel C.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120171101
Agency No. 54-2016-00329
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 5, 2017, 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. The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
BACKGROUND
During the relevant time, Complainant was employed as a Scientific Software Developer by Earth Resources Tech Corporation (hereinafter "ERT"). The record reflects that ERT contracted with the Agency to provide support at the Agency's National Centers for Environmental Information (NCEI), in Silver Spring, Maryland.
In September 2016, Complainant's CAC (common access card) denied him access to the fourth floor of the Agency's facility. Complainant was allegedly "aggressive" with the Office of Secretary (OSY) staff and attempted to approach the OSY Director directly, in his effort to obtain access. OSY reported his behavior to NCEI, which, in turn, contacted ERT. ERT employees, at the facility's security desk, required Complainant to turn over his badge. The following day, Complainant went to the ERT office and was informed that he would no longer be working at NCEI.
Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On October 26, 2016, Complainant filed a formal complaint based on national origin and reprisal for prior protected EEO activity.
In the instant final decision, the Agency framed the claims as follows:
1. Periodically, the common access card [Complainant] used to enter the building did not function adequately and the security guard told him that this was occurring because he is a "foreign national".
2. From late June 2016 to September 23, 2016, [Complainant's] workload was greatly reduced, and work he could have been assigned was instead assigned to another [ERT] employee who was a U.S. citizen.
3. From June 26, 2016, through September 23, 2016, when [Complainant] requested that Federal employees [O] and [R] install developer software on the Linux server so that he could do his work, they refused to do so and e-mailed him "many irrelevant questions."
4. On or about July 21, 2016, Federal employee [K] revoked his badge and the issue involving his badge was not resolved until July 22, 2016.
5. On or about July 26, 2016, [ERT Employee J] told Complainant that he had committed a security violation because he had downloaded part of developer software into his own account on his workstation computer and copied those parts to the Linus serve. ERT Employee J directed Complainant to repeat a security training which he had previously taken. Then, on July 27 and 28, 2016, ERT Employee J and Federal employee [S] e-mailed Federal employees and [ERT] employees that Complainant had committed a security violation. However, other contractors who downloaded the same software, including Employee [Z], were not accused of committing [sic] or directed to repeat security training.
6. From July 28, 2016 to September 23, 2016, Federal employee [S] refused or "inordinately delayed" his remote access requests and developer software requests.
7. After returning to the office following a September 6 through 9, 2016 work meeting in Colorado, his badge was not working properly and the Badging Office advised that his badge had "foreign national access" and that he could not be in the office after 6:00p.m.
8. On September 22, 2016, [Complainant] left the office at 4:30p.m. When he returned, the Security Guard told him that his identification had been rejected. A few minutes later, ERT employees who were at the Security Guard desk told him that he had to give them his badge.
9. On September 23, 2016, [Complainant] went to the ERT office located in Silver Spring across the street from NOAA and spoke to [an HR employee], who called [ERT] Human Resources Vice-President, who told her that Complainant would not be able to work at NCEI anymore.
The Agency dismissed the formal complaint on the grounds that Complainant was not an Agency employee, and therefore lacked standing to use the Agency's EEO process. The Agency reasoned that Complainant was an employee of ERT, since they hired, paid, and supervised him. Without conducting a detailed analysis, the Agency listed the factors set forth in Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998), and concluded that it did not exercise sufficient control over Complainant to be considered a joint employer.
Complainant filed the instant appeal.
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 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.
In the instant case, the Agency did not conduct a thorough analysis of many of the Ma factors. Instead, the Agency simply noted that "Complainant was hired, paid, and granted employee benefits by [ERT]." Without providing any specificity or analysis, the Agency merely concluded that "the record also clearly shows that ERT retained ultimate supervisory authority over Complainant and retained control over the means and manner of his work performance." On appeal, Complainant argues that he received assignments directly from an Agency employee located in Boulder, Colorado. Further, he contends that his work was supervised by both an ERT employee and an Agency employee.
The parties do not dispute that Complainant worked at an Agency facility with Agency equipment, and that Complainant was paid by ERT. However, when the instant record is analyzed under the many remaining Ma factors, we do not find that the Agency's dismissal is substantiated.
The Agency provided several hundred pages of documents. The vast majority of these documents set forth various "Standard Operating Procedures". The record sets forth in detail the processes and services performed by the NCEI, a lengthy position description of sorts. However, these documents do not appear to be specific to ERT or even the facility where Complainant performed his work.
There are additional documents of record, regarding the agreement between ERT and the Agency, that reflect a "ceiling price" of over $34 million. From the instant record, we are able to determine that the Agency set the hours and days of work. Further, ERT was required to obtain the Agency's consent prior to making any key personnel substitutions. These documents, however, fail to address the daily relationship between Complainant and the Agency. They do not challenge the Complainant's assertion that he received assignments and was supervised by Agency employees.
The only affidavit submitted by the Agency, is also similarly lacking. The Agency official answered most of the questions with conclusory "yes" or "no" responses. The most detailed response was provided in describing the incident that resulted in Complainant's removal (i.e. a dispute regarding his access to a particular floor of the Agency facility).
Therefore, based on the evidence before us, we find that the Agency's determination that it lacked sufficient control to be considered a joint employer is not substantiated. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Instead, it appears that although Complainant was paid by ERT, he performed his job at an Agency facility, used Agency equipment, followed Agency procedures, worked a schedule set by the Agency, received assignments from Agency officials, supervised by Agency employees, and removed as a result of Agency input.
CONCLUSION
The Agency's final decision is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
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 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 (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
January 19, 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 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov.
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