Andy B., Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120140002 Agency No. ARREDSTON13JUL02402 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 19, 2013, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint Complainant was employed with VT Group, a private employer, and served the Agency as a Requirement Analyst at its AMCOP-C, Army Material Command in its Redstone Arsenal in Alabama. On July 26, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (African-American), sex (male), color (Black), age (59), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 (witness in an Agency 15-6 sexual harassment investigation) when, on May 20, 2013, the Assistant Deputy, AMCOP-C, Army Material Command, and his subordinate Chief in the same organization refused to keep Complainant's name on the re-hire list to serve the Agency for LogiCore, which replaced VT Group. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. The instant appeal followed. Complainant's former employer, VT Group, lost its contract with the Agency to LogiCore. LogiCore entered its contract with the Agency around May 2013. According to Complainant, with the exception of him, all the other employees in his government division were rehired by LogiCore. The Assistant Deputy and the Chief wrote that they had absolutely nothing to do with the new contract and re-hiring of contract employees. They denied having any influence on the adding or deleting of names from LogiCore's hiring list. The Chief indicated that he believed LogiCore did not hire Complainant because his task, Knowledge Manager, was removed from the contract. The Assistant Deputy's statement was consistent with this. Complainant does not contest that his task was discontinued. On appeal, he submits an email by a former co-worker about a Comparison 1, a contract employee located at Fort Belvoir who performed the task of Assistant Battle Captain. According to the email, all contract Assistant Battle Captains were converted to Agency civilian employees, but since Comparison 1's expected government slot was previously filled in July 2011, Comparison 1 was allowed to transfer to Huntsville (Redstone Arsenal), and was not released. Referring to Complainant, the co-worker asks that if his position was no longer required, why was he not afforded the same opportunity as Comparison 1. 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 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 3 - 5 and 8 - 11, and 14 Indicate that Complainant may be an Employee of the Agency Complainant worked on Agency premises using an Agency networked laptop, desk, telephone, and printer. (Factors 3 and 4). He started serving the Army Military Command in 2008. At some point before or after this he served the Treasury Department. Sometime after 2008 he left the Army Military Command to take a position at the Pentagon and served there for a year, and then returned. While the record is not definitive on this, it appears Complainant returned sometime in 2011, and stayed until May 2013. (Factor 5). Either or both the Assistant Deputy and Chief wrote that they were not aware of Complainant doing work for anyone else (Factor 11), and there is no indication he hired or paid assistants. (Factor 9). Complainant provided Knowledge Management services to the Agency - smart technology, mission systems, and trained personnel on Knowledge Management principles as a member of the team, which we find more likely than not goes to the Agency's mission. (Factor 10). Complainant contended that in June 2011 the Assistant Deputy said he wasn't going to fire him but suspended him for two weeks for alleged misconduct, which indicates the Agency had the power to terminate him. (Factor 14). Factors 1, 2, 6, 8, 12, 13 and 15 Indicate that Complainant is not an Employee of the Agency Either or both the Assistant Deputy and Chief wrote that the contractor provided an onsite Program Manager who assigned work to Complainant in accordance with the tasks to be performed in the contract and the Assistant Deputy. Complainant does not counter that the details of his performance were supervised or controlled by the Agency. (Factors 1 and 6). His job required a high level of expertise. (Factor 2). All facets of Complainant's pay and benefits were provided by VG Group. (Factors 8, 12, 13). Either or both the Assistant Deputy and Chief wrote that the contract laid out the working relationship between the contractor (VG Group) and the government, not Complainant. (Factor 15). There is insufficient information in the record to make a determination on factor 7. Complainant contended that the Assistant Deputy and Chief were responsible for the discrimination. It is significant that they denied having any influence on the adding or deleting of names from LogiCore's hiring list. While Complainant wrote in his EEOC charge against LogiCore that he believed the Agency provided a list of recommended employees to retain and exclude, he does not indicate his belief stemmed from anything other than an assumption on his part. The record does not show that the Agency had control over LogiCore's decision not to hire Complainant (factor 1), an especially significant factor in this case. 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 his employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The Agency's decision 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 May 20, 2014 __________________ Date 2 0120140002 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140002