Complainant, v. Allison M. Macfarlane, Chairman, Nuclear Regulatory Commission, Agency. Appeal No. 0120142033 Agency No. NRC-14-01 DECISION On April 29, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 27, 2014, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency initially as a supervisory Project Manager and later as a Working Foreman doing warehouse work in Rockville, Maryland. On October 3, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Caucasian), and reprisal for prior equal employment opportunity (EEO) activity starting on July 11, 2013 (after initiating EEO counseling) when: 1. The Agency's Contracting Officer Representative (COR), who was the Projects Officer and a non-supervisory senior warehouse staff member, said several times that he would like more African-Americans in supervisory positions. 2. Since the COR became the Project Officer over the staffing firm's contract with the Agency (around 2012), he made disrespectful comments to Complainant and his co-workers. 3. On May 27, 2013, he was demoted from the position of staffing firm supervisory Project Manager to staffing firm non-supervisory Working Foreman. 4. On or about August 19, 2013, an employee (African-American) of the staffing firm informed him that the COR was attempting to have the employee assigned to perform work under the contract, and when the COR approached the employee, the COR said "I'll see you next week." 5. On or about August 22, 2013, he greeted the COR upon his arrival at the office, and the COR ignored him. 6. On or about August 24, 2013, the COR called a meeting of staffing firm employees and announced the assignment of Complainant's duties and responsibilities for the day to two employees (African Americans). 7. On or August 26, 2013, his service to the Agency ceased, and he was demoted from the position of Working Foreman to the staffing firm position of Installer/Mover (serving other client(s)). 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. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the 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 1 - 7, 9, and 11 Indicate that the Agency Jointly Employed Complainant In his role of staffing firm Project Manager, which he held from March 2009 until May 27, 2013, Complainant's duty was to oversee all services performed by staffing firm employees each day. On appeal, the Agency concedes that on a daily basis the COR and other Agency staff gave Complainant assignments. In an affidavit Complainant submits on appeal, he writes that while he was Project Manager, the COR and Agency Branch Chief of Property and Labor Services gave him directives and/or guidance daily. The contract provides that the staffing firm must perform its services Monday through Friday for eight continuous hours, with the start time determined by the Agency. The Agency designated where work occurred (factors 1 and 6, 7). In its FAD, the Agency concedes that that Complainant's work did not require a high level of expertise (factor 2). Complainant used Agency tools and equipment to perform his duties, and worked on Agency premises (factors 3, 4) (see Exhibit 2 to the FAD). Complainant served the Agency since March 2009, a continuing relationship (factor 5). He did not hire and pay assistants, and was not in business for himself (factors 9, 11). Factors 8, 10, 12 - 15 indicate that the Agency did not Jointly Employ Complainant The staffing firm paid and handled Complainant's compensation and benefits (factors 8, 12, 13). While Complainant writes that the Agency provided him health and welfare benefits, the record suggests this refers to a voluntary wellness program, such as influenza vaccinations. This is so because there were no federal benefits associated with his position, like retirement or health insurance. On balance, we find factor 12 points in the direction of the Agency not jointly employing Complainant. Warehousing is not the mission of the Agency (factor 10). The Agency did not believe it was creating an employer - employee relationship with Complainant (factor 15). The thrust of Complainant's complaint concerns his demotion (which did not involve a reduction in pay) and cessation of his service to the Agency. Issues 1, 4 and 6 actually regard this - Complainant's assertion that the COR favored staffing firm positions, especially ones with authority, going to African-Americans. Issues 2 and 5 were minor claims - one involving disrespectful comments by the COR which Complainant did not identify, and the other an incident where the COR did not acknowledge his greeting. Regarding Complainant's demotion, the staffing firm's Senior Project Manager, who worked off-site in Bethesda, Maryland, wrote a letter to the COR on July 15, 2013. Therein, he acknowledged that the COR reported to the staffing firm that things between Complainant and staffing firm Employee 1 had gotten so bad there was an imminent threat of disruption to the contract if the situation was not quelled. The Senior Project Manager wrote the following: there were several incidents where Complainant and Employee 1 had shouting matches near Agency staff. He held a meeting between the three of them. Employee 1 said Complainant's management style was to directly order in a demeaning tone that tasks be performed immediately. The meeting was so stressed and tense that immediate action was needed to keep the situation from escalating, and an evaluation of the operation was required. He listened to other staffing firm employees, who said they talked to Complainant about his style of management to no avail, and the operation ran smoother when Complainant was out and staffing firm Working Forman acted in his place, something which Employee 1 also indicated. He asked the COR if a change in staff between Employee 1 and Complainant was needed and he responded no,1 and then asked the COR if he would object if the Foreman became the staffing firm Project Manager, and he did not object. The Senior Project Manager talked over the situation with his supervisor, the staffing firm Chief Operation Officer (COO), and they decided to send Complainant to a mandatory anger management class and make the Working Forman the Project Manager, and Complainant the Working Foreman. In the letter to Complainant notifying him of his new assignment, the staffing firm cited the COR's input. Regarding the cessation of Complainant's service to the Agency, the COO wrote that she decided to assign Complainant to the position of Installer/Mover (where he served different client(s)) based on his overall behavior and a decline in his performance. When Complainant filed his formal complaint in October 2013, he was still an Installer/Mover with the staffing firm. According to the counselor's report, both the COR and the Agency Branch Chief of Property and Labor Services indicated they were disappointed when they were informed by staffing firm management it made the decision to cease Complainant's service to the Agency. While in this case some factors point to a joint employment relationship, a significant factor in determining whether the Agency was Complainant's joint employer is whether it had the tantamount power to terminate him. This is especially true here because the thrust of Complainant's claim regards his demotion and the termination of his services. See Murphy v. Department of Veterans Affairs, EEOC Appeal No. 0120132014 (Sept. 17, 2013) (termination of services case); Pictsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009). In examining this issue, we find it significant that while the COR notified the staffing firm of an altercation between Complainant and Employee 1 in front of Agency employees, and demanded that something be done to quell the situation, when the staffing firm suggested that Complainant be terminated the COR asked that another resolution be found. We also find it significant that the staffing firm wrote letters indicating that it suggested the demotion to the COR and carried it out after it conducted its own fact-finding, and later decided to reassign Complainant to serve as Installer/Mover (serving other client(s)) based on his overall behavior and deterioration of performance. This indicates that the staffing firm retained full power over Complainant's employment. 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 FAD 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 January 28, 2015 __________________ Date 1 According to the Counselor's Report, the Branch Chief of Property and Labor Services said the staffing firm mentioned it would terminate both Complainant and employee 1, but the COR requested it find another resolution to the problem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142033 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142033