Mickie B., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120122698 Agency No. 11-66095-02158 DECISION On June 19, 2012, Complainant timely filed an with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 21, 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 Columbia-Arora Joint Venture, LLC, a private staffing firm, serving the Agency as a Licensed Vocational Nurse in the Mother Infant Unit in the Agency's Naval Hospital in Lemoore, California. On July 16, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African/Mexican American) when: 1. On July 16, 2010, she was given a verbal warning by the Department Head, Mother Infant Unit (an Agency manager) for sleeping on her night shift; 2. In August 2010, she was approached by the Department Head and spoken to in a condescending manner at the Nurses' Station in front of her co-workers; 3. On September 16, 2010, she learned that she was suspended for allegations of sleeping, watching TV, closing a door, and telling co-workers not to bother her; and 4. On January 11, 2011, she was terminated. Following an investigation of Complainant's complaint, the Agency dismissed it for failure to state a claim. 29 C.F.R. § 1614.103(c) and .107(a)(1). It reasoned that Complainant was not an employee of the Agency. In opposition to Complainant's appeal the Agency argues that Complainant was not an employee of the Agency. 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: 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. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm (Columbia-Arora) and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. 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. Factors 1, 3 - 6, 9 - 11 and 14 Indicate that Complainant is Jointly Employed by the Agency Complainant wrote that the Mother Infant Unit Department Head was her first line supervisor, and the Department Head stated she was Complainant's manager. The contract between the Agency and Columbia Arora provides that government supervisory personnel are responsible for providing day to day supervision and control of contract personnel, including the provision of technical guidance, direction, and approval of tasks performed. Report of Investigation (ROI), Ex. F-7, at 166, 169.1 The Department Head stated that she managed how her unit functioned, and the Agency had the right to assign Complainant tasks required by her job description. While Columbia-Arora issued Complainant her performance appraisals, the Agency Department Head stated that the Agency rated Complainant. ROI, at 281. We take this to mean that the Agency had input into Complainant's appraisal. We note that the Columbia-Arora reviewer for Complainant's appraisal of record was located off-site in Arizona. ROI, 78, 269. The Unit Head gave Complainant a verbal warning for sleeping on the job, which they both signed, with the former signing as Complainant's "supervisor." Complainant worked on Agency premises using Agency tools, materials, and equipment (factors 1, 3, 4, 6).2 She served the Agency in her position since August 2005, showing a continuing relationship (factor 5). Complainant's work was part of the mission of the Agency hospital - to provide health care (factor 10). She did not hire and pay assistants, and was not engaged in her own business (factors 9 and 11). In the warning communication sheet, the Agency Unit Head wrote that if Complainant slept on the job again, Columbia - Aurora would be notified and she would be terminated. ROI, at 74. On January 11, 2011, the Agency notified Columbia - Aurora that Complainant was in a patient's room playing the radio or TV loudly and laughing hysterically. By letter dated January 12, 2011, Columbia - Aurora notified Complainant in writing that her employment was "terminated at the request of the command." While the Agency avers that Columbia - Aurora made the decision to remove Complainant, given the above, we find that the Agency, for purposes of our joint employer analysis, had de facto or tantamount removal authority (factor 14), an important factor in determining control in a removal case. Pietsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009). Factors 2, 7, 8, 12, 13, and 15 Indicate that Complainant may not be an Employee of the Agency Complainant's work requires a high level of expertise (Factor 2). Columbia-Arora set Complainant's schedule (Factor 7). Complainant was paid and insured by Columbia-Arora (Factors 8, 12, 13). The Agency did not believe it was creating an employer-employee relationship with Complainant (factor 15). 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 joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The FAD is REVERSED ORDER The Agency shall provide Complainant with a copy of the investigative file (which it has already completed), and notify her that within 30 days of her receipt of the file that she has the right to request a hearing and decision from an EEOC Administrative Judge or may request an immediate final decision from the Agency. The Agency shall complete this action within 30 calendar days after this decision becomes final. Thereafter, the Agency shall process Complainant's case in accordance with 29 C.F.R. Part 1614. A copy of the Agency's letter to Complainant transmitting the investigative file and notifying her of election right, as set forth above, 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 May 20, 2014 __________________ Date 1 ROI page numbers in this decision refer to bate stamp numbers. 2 While the Agency did not have the right to assign Complainant tasks outside the duties set forth in the contract, her duties were broad and varied, and we find the assignment of them meets factor 6. Complainant's duties included performing a full range of diagnostic support including the taking of vital signs, collecting specimens, and tracking the results of diagnostic tools, assisting the physician in a variety of diagnostic examinations and procedures, executing physician's orders within the guidelines of standard nursing practice, and performing a variety of procedures ordered by the health care providers within the scope of Licensed Vocational Nurse practice. ROI, at 119 - 120. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120122698 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120122698