Yolanda J. Faulk, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120110784 (E.E.O.C. Dec. 8, 2011)

0120110784

12-08-2011

Yolanda J. Faulk, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.




Yolanda J. Faulk,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Appeal No. 0120110784

Agency No. 2011017

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (EEOC or Commission) from the Agency's decision dated November

3, 2010, 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 was

employed with Day & Zimmermann, NPS, Inc. serving as an apprentice

Boilermaker at the Agency’s Cumberland Fossil Plant facility in

Cumberland, Tennessee.

She filed an unsigned formal complaint alleging that she was discriminated

against based on her race (Black), sex (female), and reprisal for prior

protected EEO activity when (1) on April 9, 2010, she was subjected to

an initiation hazing incident of having liquid poured on her, and (2)

she was laid off on April 22, 2010.1

The Agency dismissed the complaint for failure to state a claim on the

grounds that Complainant was not an employee of the Agency. 29 C.F.R. §

1614.107(a)(1). It reasoned that Complainant was a contractor over

whom it did not control, and she did not report to an Agency supervisor

or manager.

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:

• The employer has the right to control when, where, and how the

worker performs the job.

• The work does not require a high level of skill or expertise.

• The employer furnishes the tools, materials, and

equipment.

• The work is performed on the employer’s premises.

• There is a continuing relationship between the worker and the

employer.

• The employer has the right to assign additional projects to

the worker.

• The employer sets the hours of work and the duration of

the job.

• The worker is paid by the hour, week, or month rather than the

agreed cost of performing a particular job.

• The worker does not hire and pay assistants.

• The work performed by the worker is part of the regular business

of the employer.

• The worker is not engaged in his/her own distinct occupation

or business.

• The employer provides the worker with benefits such as insurance,

leave, or workers’ compensation.

• The worker is considered an employee of the employer for tax

purposes (i.e., the employer withholds federal, state, and Social

Security taxes).

• The employer can discharge the worker.

• 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. There are different

types of staffing firms. Those that contract with a client to perform

a certain service on a long-term basis and place its own employees,

including supervisors, at the client’s work site to carry out the

service are contract firms. Id. at Introduction section.

Clients of contract firms, including the federal government, qualify

as employers of workers assigned them if the clients have sufficient

control over the workers, 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, the client is 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, Staffing

Service Work Arrangements section. The test to determine employment

status 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, page 2-25.

Based on the legal standards and criteria set forth herein, we find that

the Agency did not exercise sufficient control over Complainant’s

position to qualify as her joint employer for the purpose of the EEO

complaint process. On appeal, Agency submits a declaration by its

Contract Manager stating that with regard to Complainant and others,

Day & Zimmerman NPS, Inc., conducted the hiring, training, supervision,

pay, maintenance of personnel records, performance reviews, and lay-off

or termination decisions, not the Agency. On appeal, Complainant does

not contest this. Further, according to the counselor’s report, those

involved in the hazing incident were not Agency employees. The Agency

was not a joint employer of Complainant.

CONCLUSION

The Agency’s decision to dismiss Complainant’s complaint for failure

to state a claim is AFFIRMED.

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 (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 (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

December 8, 2011

__________________

Date

1 The Agency defined the complaint as including the second claim.

Complainant did not include claim 2 in her unsigned complaint, but it

was in a complaint against the Agency that she mistakenly filed with

the EEOC’s Birmingham District Office in Alabama.

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0120110784

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

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Washington, DC 20013

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