0120131947
09-17-2013
Zully Sandron, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Zully Sandron,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120131947
Agency No. BOP-2013-0264
DECISION
On April 12, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 27, 2013, 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 Seaborn Health Care, Inc. serving the Agency as a Medical Assistant at its Federal Correctional Institution (FCI) in Miami, Florida.
On February 8, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected EEO opposition activity under Title VII when:
1. starting around February 2012, she was sexually harassed and subjected to a sexually harassing environment; and
2. on December 31, 2012, she was terminated.
The Agency did not define or address claim 1. It dismissed claim 2 for failure to state a claim. It reasoned that Complainant was an employee of Seaborn, not the Agency.
ANALYSIS AND FINDINGS
One of the matters 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:
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. 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.
A federal agency, as a client of a staffing firm, may qualify as an employer of a worker assigned to it 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). For example, an agency may be considered 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, at Coverage Issues Question 2. The guidance provides the following example regarding joint employment.
Example 1: A temporary employment agency hires a worker and assigns him to serve as a computer programmer for one of the agency's clients. The agency pays the worker a salary based on the number of hours worked as reported by the client. The agency also withholds social security and taxes and provides workers' compensation coverage. The client establishes the hours of work and oversees the individual's work. The individual uses the client's equipment and supplies and works on the client's premises. The agency reviews the individual's work based on reports by the client. The agency can terminate the worker if his or her services are unacceptable to the client. Moreover, the worker can terminate the relationship without incurring a penalty....
In these circumstances, the worker is an employee who is jointly employed by the client and temporary employment agency. Id. at Questions 1 and 2.
In finding Complainant was a contractor, the Agency pointed to language in the contract between the Agency and Seaborn indicating that Seaborn was providing Medical Assistant services based on a pricing schedule with payment made to Seaborn. The Agency also noted pre-employment documents Complainant signed referring to her as a contract worker and to an email by Seaborn to Complainant stating she was an employee thereof. The Agency considered that Seaborn was paying FICA taxes and withholding taxes for Complainant, and that Complainant wrote in her complaint that she was employed at the Agency through a contract between the Agency and Seaborn.
Complainant contended that she was discriminated against by the Acting Health Services Administrator (HSA), the Medical Director, and a Nurse. In an e-mail to Seaborn asking that her removal be reconsidered, Complainant wrote that she worked at the FCI for almost two years and had a positive February 2012 performance appraisal by the Medical Director (it is on a Seaborn form with instructions that it be mailed or faxed to Seaborn). In a letter directed to a contracting official in the FCI's Business Office through the Acting HSA, Complainant referenced assisting the Medical Director with a patient, and in a separate letter to the Acting HSA Complainant referred to him as her direct supervisor and asked that he and not the Nurse communicate work orders to her, and asked about the Nurse's authority. The record reflects that the Agency made the decision not to continue Complainant's services. It does not reflect whether Seaborn continued to employ Complainant elsewhere.
On appeal, Complainant argues that she is jointly employed by the Agency and Seaborn and asserts that, although she was paid by Seaborn, employees and managers of the Agency fully controlled her work assignments and environment. She does not provide examples.
In processing Complainant's case, the Agency did not make an inquiry on the Ma factors to determine whether the Agency jointly employed Complainant.
The record does not reflect whether the Acting HSA, Medical Director, and Nurse are Agency employees, and if not, by whom they are employed. The Agency's reliance on papers labeling its relationship with Complainant as a contractor are insufficient to disprove a joint employment relationship.
On remand, the Agency shall gather information in accordance with the order below to determine whether the Agency jointly employed Complainant. It shall also process issue 1 in accordance with 29 C.F.R. Part 1614.
The FAD is REVERSED.
ORDER
The Agency is ordered to take the following actions:
Conduct a supplemental investigation on whether it had sufficient control over Complainant's Medical Assistant position to be a joint employer. In so doing, the Agency shall take affidavits, declarations or statements from Complainant and people who worked with or in close proximity to her, as well as any others who have such information. To the extent it is not already in the record, the Agency shall gather information on the above listed 15 factors; on whether the Acting HSA, Medical Director, and Nurse are Agency employees, and if not by whom they are employed; and whether Seaborn continued to employ Complainant after the Agency did not renew her services. The investigation shall gather information on who assigned Complainant work (who to assist and what to do, what patients to see, etc.), and by whom these persons were employed, and if the Agency did not assign her work whether it reserved the right to do so. Thereafter, the Agency shall give Complainant a copy of the supplemental investigation, provide her an opportunity to respond, and include her response in the supplemental investigation.
The Agency shall also process issue 1, listed in this decision, in accordance with 29 C.F.R. Part 1614.
The Agency shall accept the complaint in whole or part, or procedurally dismiss it with appeal rights to the EEOC. The Agency shall complete the above actions within 60 calendar days after this decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented, including a copy of the acceptance letter or FAD, as applicable.
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
September 17, 2013
__________________
Date
2
0120131947
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131947