Complainants,1 v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency. Appeal Nos. 0120141963 & 0120141762 Agency Nos. OBD-2014-00263 & OBD-2014-00255 DECISION On April 29, 2014, and April 8, 2014, respectively, Complainants each timely filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from final Agency decisions (FADs) dated April 2, 2014, and March 28, 2014, dismissing their separate complaints 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. Pursuant to 29 C.F.R. § 1614.606, the appeals from these two complainants are being consolidated for a single decision because the issue on appeal is the same. BACKGROUND At the time of events giving rise to their complaints, Complainants 1 and 2 worked for a staffing firm serving the Agency's Criminal Division, International Criminal Investigative Training Assistance Program (ICITAP), as law enforcement Advisors in Bosnia-Herzegovina. Complainant 1 served as a Level 12 Advisor in the area of financial crimes, and Complainant 2 as a Level 9 Advisor in the area of organized crime. Complainant 1 started serving ICITAP in September 2007, and Complainant 2 started serving around the same year. In its May 2011 statement of work to Complainants' staffing firm, the Agency wrote that the task order was for eight long term Advisors, with the goal of strengthening Bosnia-Herzegovina's judicial and law enforcement institutions for sustained and effective action against criminal activity, including narcotics and human trafficking, money laundering, public corruption, organized crime and terrorism. This was to support U.S. foreign policy and national security objectives. On March 20, 2014, Complainant 1 filed formal complaint 1 (OBD-2014-00263). Complaint 2 (OBD-2014-00255) was filed by Complainant 2 on March 4, 2014. Both Complainants alleged that they were discriminated against based on national origin (Bosnian by association - married to a Bosnian) when the Agency did not renew the task orders for their positions, resulting in their terminations. Their service to the Agency was cut off on December 31, 2013. Both Complainants alleged that they learned in December 2013, that the Assistant Director of ICITAP, who works in Washington, DC, said that anyone who was in Bosnia for more than five years and married to a local woman would cease servicing the Agency there. The Agency dismissed the complaints for failure to state a claim. It reasoned that the Complainants were not employees of the Agency. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed complaints 1 and 2 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. In its FADs, the Agency found the following: the language in the contract between it and the staffing firm provided that "no employer-employee relationships exist or will exist...between the Government and the Contractor's employees" signaling the intent of the parties. The staffing firm leased the facilities where the Complainants worked, and was responsible for hiring and training them, if necessary. The Agency was not responsible for tracking time, attendance and payroll matters of the Complainants, and the staffing firm provided their compensation. The Agency found that under common law, on balance, the Complainants were not its employees. Complainant 1 wrote that he was recruited for his position by a former Agency Program Manager. The Agency's task order to the staffing firm provided that if any Advisor position became vacant due to a change in personnel, the staffing firm was to provide the resumes of four qualified candidates and the Agency would notify the staffing firm of its choice of the best-qualified candidate. Agency opposition briefs, Attachment 1, page 3. The contract between the staffing firm and Agency provided that the staffing firm would provide all management, administration, staffing, planning, scheduling, procuring, for all services required by the contact and task orders, including the supervision of contractor employees and making travel arrangements for them. Agency opposition briefs, Attach. 6, pages 14 - 15. It further provided that the staffing firm was responsible for continuously monitoring, managing and controlling the work of contract personnel, and training them. Id., at 16, 17. Under the contract, staffing firm employees were not to represent that they are employees of the government, including in the use of business cards. Under the above contract, the performance of work was subject to the Agency Contracting Officer's Technical Representative (COTR) providing technical direction such as filling in details, suggesting lines of inquiry, or otherwise supplementing the scope of work. Id. at 31. The specific hours of the operation were to be established by the COTR for each local office, and operations conducted outside of normal business hours were to be performed only with written authorization of the COTR. Id. at 43. The Agency reserved the right to require the staffing firm to reassign from the contract any contractor employee who was deemed incompetent, careless, unsuitable or otherwise objectionable or whose continued use under the contract was deemed contrary to the best interests of the Agency. Id., at 17. An Agency Security Programs Manager was responsible for coordinating the securing and maintaining of security clearances of staffing firm employees. Id. at 32 - 33. The Criminal Division's Acting Assistant Agency Counsel stated that the Agency's in-country Program Manager provided minimal oversight, and the Complainants did not work alongside Agency employees. The record suggests that the EEO counselor solicited responses from Complainants 1 and 2 on above listed job control factors. The record contains the response of Complainant 1, but not Complainant 2, albeit he writes he provided documentation to the EEO counselor. See Complainant 2's complaint, attachment, page 1. Complainant 1 wrote that the Agency Program Manager instructed him on how the Program Manager wanted the financial crimes program run, routinely assigned him projects and duties, established priorities, limited the contacts he could make based on the official positions of the persons to be contacted, and often gave advice on how to deal with certain counterparts. He averred that the staffing firm had no role over the work or the monitoring and managing of consultants, noting that the entire time he served the Agency in Bosnia he never communicated with a staffing firm representative regarding training, monitoring, managing, or performance issues. Complainant 2 wrote that in the over six years he worked in Bosnia, the staffing firm was never involved in his daily working agenda, and that the Agency, via Washington, DC and its in-country Program Manager, dictated his schedule, travel, and contacts. A successor Agency Program Manager arrived in-country in October 2013. Complainant 2 wrote that the new Program Manager provided staffing firm Advisors gold coins with "ICITAP Criminal Division" written on one side and "Department of Justice, ICITAP" on the other, and wanted them to wear lanyards with the words "ICITAP Bosnia Herzegovina." Complainant 1 wrote that the computers used by the Advisors were administered by ICITAP information technology (IT) personnel, with appropriate warnings regarding ICITAP property usage. He wrote that the Agency Program Manager addressed Advisors if he felt they were abusing start or ending times, including him when he thought he was not in the office by 9 AM. Complainant 1 wrote that he did not hire and pay assistants, and was not engaged in his own distinct occupation or business. He wrote that when the Agency Program Manager did not believe a staffing firm contractor was doing his/her job properly, he did not hesitate to have a very serious conversation and on more than one occasion heard him tell an Advisor "I'll fire your ass," and that he did, in fact fire one person. Complainant 1 wrote that on December 2, 2013, the staffing firm Human Resources Manager informed him that his contract was expiring on December 31, 2013, and would not renew because the Agency Program Manager decided the program was "changing directions, and going in a different direction." However, she had no further details. Complainant 1 wrote that the Human Resources Manager advised that the termination of his contract was not because of performance issues or cause. Complainant 2 wrote that on December 2, 2013, the same Human Resources Manager notified him his contract was terminated, that this was not coming from the staffing firm, and was not based on poor performance or cause. The Acting Assistant Agency Counsel, Criminal Division, wrote that the Agency's in-country Program Manager decided to terminate the services of Complainants 1 and 2 because their services, which focused on instruction and training, were no longer needed. Factors 1, 5, 6, 7, 9, 10, 11, and 14 Indicate that the Agency Jointly Employs Complainants 1 and 2 While the Agency's counsel contends that its in-country Program Manager merely served as a technical advisor giving minimal oversight, we find that the realities on the ground were different. Complainant 1 wrote that the Program Manager routinely assigned him projects and duties, established priorities, and limited his contacts, and Complainant 2 wrote the Program Manager dictated his schedule, travel and contacts. Complainant 1 wrote that the staffing firm played no role in his work, and Complainant 2 wrote it was never involved in his daily work agenda. The Agency recruited Complainant 1, and when Advisors were replaced the Agency had final selection. The Agency set Complainants' work hours, and its in-country Program Manager would address any Advisor who he believed came to work late or left early (factors 1, 6, 7). Prior to the termination of their services, Complainants 1 and 2 had served the Agency for about six years, a continuing relationship (factor 5). The Complainants did not pay assistants, and were not in business for themselves (factors 9, 10). Their work went directly to the mission of the Agency - work to professionalize law enforcement in Bosnia-Herzegovina. Since this is a removal case, a significant factor is the power to discharge the worker. There is no dispute that the Agency made the decision to cut off the Complainants' services. While the record is not definitive on this point, it suggests that the staffing firm formally terminated the Complainants. Complainant 2 stated he was forced to move home to Florida and requested back pay. Complainant 1 cited language in his employment contract with the staffing firm that he was an at-will employee whose continued employment was subject to customer approval, and asked for back pay. Given this, we find the weight of the evidence shows that the Agency's decision to cut off the Complainants' services amounted to a de facto removal. Pietsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009). Factors 2 - 4, 8, 12, 13, and 14 Indicate that Complainants 1 and 2 are not Jointly Employed by the Agency Complainants' work required a high level of expertise (factor 2). They worked on premises provided by the staffing firm (factor 4). The staffing firm provided their wages and benefits (factors 8, 12, 13). The Agency did not believe it was creating an employee-employer relationship (factor 15). We find that factor 3 does not point in any direction because there is insufficient information in the record on who actually supplied the tools, materials and equipment for work. Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainants' positions to qualify as their joint employer for the purpose of the EEO complaint process.2 ORDER The Agency is ordered to process Complaints 1 and 2 in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainants that it has received the remanded complaints within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to the Complainants a copy of the investigative file(s) and also shall notify Complainants of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant(s) request a final decision without a hearing, the Agency shall issue final decision(s), as applicable, within sixty (60) days of receipt of the Complainant(s) request. A copy of the Agency's letter of acknowledgment to Complainants and a copy of the notice that transmits the investigative file and notice of rights 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 January 28, 2015 __________________ Date 1 Hereinafter Complainant May shall be referred to as "Complainant 1" and Complainant Sweet as "Complainant 2". 2 While the Agency does not make this argument on appeal, at one point during the initial processing of these complaints the Acting Assistant Agency Counsel opined that Complainants' basis of marital status did not state a claim under the EEO complaint process, and that only the United States Office of Special Counsel has jurisdiction over marital status claims. Here, however, the Complainants are not alleging discrimination based on marital status. They claim discrimination based on national origin by close association (their wives are Bosnian). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141963 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120141963 & 0120141762