0120131148
06-11-2013
Stacy M. Shorter, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Headquarters), Agency.
Stacy M. Shorter,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.
Appeal No. 0120131148
Agency No. HS-HQ-22658-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 7, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked for Brown Construction Services as an Assistant Program Analyst serving the Agency at its Office of the Chief Administrative Officer, Headquarters Facilities Operations, in Washington, D.C.
On August 7, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African-American) and reprisal for prior protected EEO activity when:
1. on or about February 13, 2012, the Agency Reimbursable Work Manager (RWAM), in the Office of the Chief Administrative Officer, Headquarters, became inappropriately irate, cursing her and humiliating her for about 30 minutes in front of other staff members;
2. on a continuing basis since February 13, 2012, the RWAM stopped training and being friendly to her;
3. on a continuing basis since February 20, 2012, the RWAM changed her terms and conditions of employment, including removing her telework option, and requiring her to defend any flexing of her work schedule;
4. on a continuing basis since June 7, 2012, the RWAM has tried to sabotage her in an effort to set her up for termination, including, but not limited to:
a. on June 7, 2012, assigning Complainant a large project related to an audit, and informing her to put her regular work aside even though it included time-sensitive tasks;
b. on June 21, 2012, sending an e-mail message to the RWAM's supervisor and others with the subject line "Stacy's last days," after which, staff members began making remarks to Complainant that she was going to be terminated; and
c. on unspecified dates unjustly criticizing Complainant's work to her supervisor and others, including inaccurately informing her contract supervisor that the RWAM had to perform Complainant's work on June 21, 2012.
5. On July 31, 2012, she was terminated.1
The record indicates that Brown Construction Services provided staff to the Agency versed in design, construction, building, facilities management, and financial expenditure tracking who would integrate into the support of Agency's Chief Administrative Officer. Complainant stated that she served the Agency as a Financial Manager/Reimbursable Work Authorization (RWA) Manager, responsible for payment and collection in connection with projects to make physical improvements to the workspace. She did not supervise anyone. Complainant worked with the Agency RWAM, who the Brown President referred to as its client.
The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1), reasoning that Complainant was not an employee of the Agency and so lacked standing to bring a complaint under the 29 C.F.R. Part 1614 complaint process.
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).
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. In sum, the test to determine employment status often turns on whether the employer controls the means and manner of the worker's work performance. 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); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (December 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 may qualify as the joint employer of a worker assigned to it by a contract firm 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). Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, Staffing Service Work Arrangements section. The guidance provides the following example regarding a contract firm.
Example 5: A staffing firm provides landscaping services for clients on an ongoing basis. The staffing firm selects and pays the workers, provides health insurance, and withholds taxes. The firm provides the equipment and supplies necessary to do the work. It also supervises the workers on the clients' premises. Client A reserves the right to direct the staffing firm workers to perform particular tasks at particular times or in a specified manner, although it does not generally exercise that authority. Client A evaluates the quality of the workers' performance and regularly reports its findings to the firm. It can require the firm to remove the worker from the job assignment if it is dissatisfied. The firm and the Client A are joint employers.
Factors 1, 3 - 9, 11 and 14 Indicate that Complainant is an Employee of the Agency
Regarding factor 1, according to the Brown President, Complainant was supposed to perform her duties without supervision. Complainant stated she performed them without supervision. Brown did not have an on-site supervisor. According to the Brown President, the Agency gave tasks to Brown who in turn delegated them to appropriate staff, including Complainant.
The RWAM stated that Brown provided Complainant her assignments. Complainant countered that the RWAM also assigned her tasks. She stated that in late February 2012, the RWAM gave her a list of tasks to perform. Complainant provided a copy of the list, which included a couple tasks that were scheduled for specific days. They included sending out emails to "the team" each Monday morning updating the "All Projects Database," producing and sending out an All Projects Report on a Wednesday, checking the Webview for new "IPACs" and updating the IPAC tracking spreadsheet with the RWA #, the IPAC amount and date, and complete invoice number, sending out RWA Balance PDF reports to requestors, with an attachment of how the report should look, and a number of other tasks. Complainant wrote that in June 2012, the RWAM ordered her to work on a large audit assignment and put her regular time sensitive work aside. When asked if she assigned Complainant the audit report, the RWAM simply stated Complainant was given the task within the scope of work Brown performs, and did not deny making the assignment. Complainant added that when she needed more work, she went to the RWAM. In light of Complainant's specific examples of tasks assigned by the RWAM, and the RWAM not denying she assigned Complainant the audit project, we find the Agency and the RWAM both assigned Complainant work.
The RWAM stated that she did not train Complainant. Complainant countered that the RWAM told her how to do her tasks, and when she had questions she went to the RWAM, but after the RWAM did not want to train her she quietly went to a Brown co-worker as needed. We credit Complainant's account about the help she received from the Agency because the Brown President said that when Complainant had questions, she sought assistance or clarification for the RWAM or the Brown co-worker.
An Agency Supervisory Facilities Construction Specialist stated that Complainant's hours and location she worked were in accordance with the contract and in coordination with or at the direction of Brown. The RWAM stated that she did not determine whether Complainant teleworked. Complainant countered that the Agency controlled where and when she performed her job, and that in late February 2012, she was told by the Brown President that she could no longer telework because the RWAM did not want her to do so. We credit Complainant's account because it is corroborated with statements by the Brown President. The Brown President stated that the Agency required Complainant to perform her job in a Washington, DC office where the client was located, that the Agency established core hours of support of 9 AM to 5 PM which Complainant and all Brown employees on the contract were expected to work, and the Agency required Complainant to work from an Agency office rather than telework. Based on all the above, we find that factor 1 points in the direction of the Agency being a joint employer of Complainant.
Complainant worked on Agency premises and it provided the equipment necessary to do her job, such as a laptop and blackberry (factors 3 and 4). She served the Agency full time since November 1, 2011, a continuing relationship (factor 5). As recounted above, the Agency assigned additional projects to Complainant and set her hours of work (factors 6 and 7). Complainant was paid a salary based on 40 hours a week payable bi-weekly (factor 8). Complainant did not hire or pay assistants, and was not engaged in her own distinct occupation or business (factors 9 and 11).
The RWAM stated that the Agency did not have authority to fire Complainant. She stated that she provided regular feedback to Brown on Complainant's performance. The Brown President stated that Brown's decision to terminate Complainant was based on feedback from the Agency that its expectations were not being met, i.e., irregular attendance and inability to understand how to perform tasks after several iterations of instructions from the Agency. This shows the Agency had significant input into the termination decision. Factor 14 points in the direction of the Agency jointly employing Complainant.
Factors 2, 10, 12 and 13 Indicate that Complainant may not be an Employee of the Agency
Complainant's job was professional in nature, requiring a high level of skill (factor 2). The area in which Complainant worked -- facilities management and making physical improvements to workspaces is not the mission of the Agency (factor 10). The Agency did not provide benefits such as insurance, leave, or workers' compensation, and it did not withhold federal, state, and Social Security taxes (factors 12 and 13).
It is not clear whether both the Agency and Complainant believed they were creating a contractor relationship. The Agency stated it believed it was creating a contract relationship, and Complainant stated she believed she was an employee because she worked with the Agency daily. Factor 15 does not point in any direction.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. We add that while the facts in this case are not identical to those in Example 5, that example points in the direction of the Agency being a joint employer.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claims one through 5 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 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
June 11, 2013
__________________
Date
1 In its definition of the complaint, which was apparently based on the EEO counselor's report, the Agency did not include this issue. This issue, which is like and related to claims Complainant raised with the EEO counselor, was included in the formal complaint.
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0120131148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120131148