EEOC Appeal No. 0120151376
11-08-2017
Timothy R. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Timothy R.,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120151376
Agency No. ARTRADOC13APR01166
DECISION
On March 6, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's April 24, 2015, final decision dismissing his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant time, Complainant worked as an Army Instructor (AI) at the Agency's Junior Reserve Officer Training Corp (JROTC), Bonanza High School facility in Las Vegas, Nevada. On May 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability and subjected him to a hostile work environment when: (1) on February 15, 2013, he was issued a Performance Improvement Plan (PIP); (2) on an unspecified date, information regarding his medical condition was improperly disclosed; and (3) on September 4, 2013, Complainant was insulted, criticized, met with sarcasm and intentionally provoked by a coworker.
In a decision dated April 24, 2015, the Agency dismissed the complaint on the grounds that Complainant is not an employee of the Agency, or applicant for federal employment. The Agency reasoned that Complainant was employed by the Clark County School District (CCSD), and that the members of his direct supervisory chain were also employees of CCSD.
Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his complaint was erroneously dismissed based on the determination that he was not a federal employee. He states that at all relevant times he was compensated by the CCSD through a cost share with the Agency, and that he reported to Agency personnel.
ANALYSIS AND FINDINGS
The matter on appeal is whether the Agency properly dismissed Complainant's formal complaint for lack of standing because he is not a federal employee. The Commission's jurisdiction in the federal sector complaint process extends to employees and applicants for federal government employment. 29 C.F.R. �1614.103(c). EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. A complaint may be dismissed for failure to state a claim when the complainant lacks standing to use the 29 C.F.R. Part 1614 process because he is not an employee or applicant for employment with the federal government.
A federal agency may qualify as the employer of a worker assigned to it by a staffing firm if it has sufficient control over the worker, regardless of whether the worker is on the federal government payroll. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). Some factors considered in evaluating control are if the agency 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 Finns, pp. 9-10 (Dec. 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov). A "joint employment" relationship may exist where both the agency and the staffing firm exercise sufficient control over the worker under the standards set forth above. Guidance, pp. 8-9.
The Commission has applied the common law test of agency to determine whether an individual is considered an agency employee for the purposes to utilizing the 29 C.F.R. Part 1614 process. Baker; Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. 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 hour 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. 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. See Ma v. Dep't. of Health and Human Serv., supra.
We find that factors 1, 2, 3, 4, 6, 7 and 9 indicate that Complainant is not a federal employee for purposes of filing an EEO complaint against the Agency. The record reflects that CCSD had full control over the means and manner of Complainant's performance. Only CCSD has the authority to terminate Complainant's employment. All performance evaluations are conducted and executed by CCSD. The record indicates that the PIP at issue in the instant matter was purely administrative in nature, addressing particular improvements Complainant needed to make to meet certification standards. Although identified as purely administrative, we note that the PIP was rescinded because it was improperly issued by an Agency employee instead of a member of Complainant's supervisory chain from CCSD.
Complainant's management chain is wholly within CCSD's administration and the school site where he works. The AI position lends itself more to following under the control of CCSD than the Agency. All Complainant's duties are performed in CCSD facilities using CCSD equipment. Complainant receives all his compensation from CCSD, and CCSD receives reimbursement from the Agency for 50% of the instructors pay. The only administrative action available to the Agency regarding AIs is to request "decertification of an instructor" if they fail to meet certification standards -- this does not terminate the employment. Decertification only has the effect of alleviating the Agency's responsibility of reimbursing CCSD the agreed-upon 50% share of the instructor's salary. CCSD can continue to employee the AI and cover their salary in full.
Factors 5, 8, 10 or 11 are not explicitly addressed on appeal or in the initial decision dismissing the complaint, and don't seem particularly relevant in light of the analysis of the above-referenced factors. It is clear that the intention of the parties was that Complainant was an employee of CCSD. Complainant was well aware of who exercised the most control over his employment. When he initially requested a reasonable accommodation, he did so with CCSD. Additionally, Complainant names CCSD employees as being primarily responsible for the pattern of harassment he alleges he was subjected to. Based on the Ma factors set forth herein, we find that the weight of the evidence establishes that the Agency did not exercise sufficient control over Complainant's position to qualify as his employer for the purposes of the EEO complaint process.
The Agency's decision to dismiss the formal complaint was proper and is AFFIRMED.
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 (S0610)
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 (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
_11/8/17_________________
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.
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