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
P.O. Box 77960
Washington, DC 20013
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0120112938