Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120142407 Agency No. 8V0J14002 DECISION On June 20, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 22, 2014, 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 a staffing firm serving the Agency as a Pharmacist at its Keesler Air Force Base, 81st Medical Group, in Biloxi, Mississippi. On April 8, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (Black) and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII of the Civil Rights Act of 1964 when: 1. on a continuing basis from February 2009 to present, the Agency subjected her to a hostile work environment; 2. on or about August 29, 2011, the Agency reassigned her; 3. on or about December 1, 2011, the Agency reassigned her again; and 4. in October 2012, her work schedule was reduced to zero hours, without a formal discharge. Issue 2 regards Complainant's reassignment from a satellite pharmacy (inpatient) to the main pharmacy (BX outpatient). While the record is unclear, it appears that issue 3 concerns Complainant's reassignment within the main pharmacy. Regarding issue 4, the Agency's contract with Staffing Firm 1 expired on September 30, 2011, and its contract with Staffing Firm 2 commenced on October 1, 2011. Agency Manager 1, a Lieutenant Colonel and the Pharmacy Flight Commander, wrote that Staffing Firm 2 did not hire Complainant full-time. Rather it hired her on an as-needed basis covering three shifts at the outpatient pharmacy. See complaint file, Exhibit F-7, email by Manager 1 dated March 12, 2014. Complainant indicated that shortly thereafter she received no hours. The Agency dismissed issues 1 - 3 for failure to timely initiate EEO counseling. It reasoned that the events occurred on December 1, 2011, and before, and Complainant did not initiate EEO counseling until March 4, 2014, 1 beyond the 45-calendar-day time limit. The Agency also dismissed issues 1 and 4 for failure to state a claim. On issue 1, it reasoned that Complainant did not identify any specific incidents of harassment. On issue 4, it reasoned, in essence, that because Complainant was not hired by Staffing Firm 2, there was no reduction in hours to adversely affect a term, condition or privilege of employment. Finally, the Agency dismissed the entire complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. Three days before the FAD dismissing her complaint was issued, Complainant located and provided a form to EEO Counselor 1 supporting her prior assertion to her that she first initiated EEO counseling in August 2011 on some of these matters, but was turned away. EEO Counselor 1 previously attempted to confirm this, but was unsuccessful. The form, which was signed by Complainant and EEO Counselor 2, was dated August 29, 2011, and indicated Complainant was turned away from EEO counseling because "base EEO doesn't process for non-federal employees per director." Complainant suggested to EEO Counselor 1 that she initiated EEO counseling around August 2011, before filing the form. Around May 2013, Complainant filed a charge with the private sector unit of the EEOC's Jackson Area Office charging that the Agency, in part, discriminated against her based on her race and retaliation when she was harassed, was moved twice, and her work hours were decreased. By letter in May 2013, the EEOC's Jackson Area Office requested that the Agency provide information relevant to the charges. After a delay in receiving the letter, in August 2013, the Agency's EEO office responded to the EEOC's Jackson Area Office that Complainant was not an employee of the Agency, nor provided services to the Agency since October 15, 2012. ANALYSIS AND FINDINGS Stating a Claim of Harassment The Agency dismissed issue 1 for failure to state a claim, reasoning that Complainant did not identify any incidents of harassment. We disagree. Complainant attached emails detailing some incidents of alleged harassment with her complaint. These included being isolated (people not making casual conversation with her), selective reports of medication incidents, near errors, and errors, and the Agency threatening to file a negative performance assessment report (PAR) if she complained she was being treated differently. On appeal, Complainant adds further examples, e.g., being ridiculed by a co-worker, being followed behind and interrupted in her communications with health care providers, schedule changes without notice, schedules with shorter hours and less opportunities for overtime, being blocked from working 40 hours a week by not being permitted to make up missed hours of work and exchanging work days or hours with co-workers, being forced to make up missed work hours by working blocks of consecutive days as much as 10 days straight, unfair workload, and leave requests being subjected to public verbal scrutiny. She indicates that many of these incidents occurred throughout the time she served the Agency from February 2009 onward. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. The Commission also has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll. Taking all her examples together, we find Complainant has stated a claim of actionable harassment based on race and/or unlawful retaliation. Timeliness of EEO Contact An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). This time limit is subject to waiver, estoppel and equitable tolling. 29 C.F.R. § 1614.604(c). The Agency found that Complainant did not initiate EEO counseling until March 4, 2014. We disagree. We find she initiated contact in August 2011. The Agency's EEO office in August 2011, mistakenly turned Complainant away, advising her claims could not be processed by the Agency's EEO program.2 Thereafter, Complainant filed a charge against the Agency with the EEOC's Jackson Area Office, a process designed for private sector claims. The Agency responded that Complainant was not an employee of the Agency. Given all this, we find that Complainant did not sit on her rights after the initial contact of August 2011. Accordingly, we find that she timely initiated EEO counseling on issues 2 and 3 (and also issue 4). A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice. National Railroad Passenger Corporation v. Morgan, Jr., 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of discrimination, a hostile work environment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115. A hostile work environment claim will not be time barred if all acts constituting the claim are part of the same unlawful practice even if some component acts of hostile work environment fall outside the statutory time period so long as an act contributing to the claim falls within the filing period. Id. at 117. Complainant identified a number of specific incidents in issue 1 which occurred in August 2011. Accordingly, we find issue 1, as a harassment claim, to be timely. However, discrete events which occurred more than 45 calendar days prior Complainant contacting an EEO counselor in August 2011, are not independently timely, and hence not independently actionable (meaning, for example, no back pay for untimely instances of hours worked, a discrete event. But hours worked could support the harassment claim). EEOC Compliance Manual, Threshold Issues, No. 915.003, at 2-IV.C.b, pages 2-76, 2-77 (July 21, 2005). Issue 4 We find that issue 4 states a claim. The alleged reduction of Complainant's hours to zero, which amounts to a removal, states a claim. Joint Employment The Agency dismissed the entire 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 - 5, 7, 9 - 11,and 14 Indicate that the Agency Jointly Employed Complainant Complainant performed her work at the Agency solely under supervision of Agency personnel, and was not permitted to work if no supervising Agency employees were present. The Agency completed monthly reports on each contract employee. In July 2011, it issued a negative PAR on Complainant which it provided to staffing firm 1. The Agency conceded that Complainant's Agency supervisor had the responsibility for setting her schedule and would make a recommendation on whether a leave request should be granted. Complaint file, Exhibit F-7, email by Manager 1 dated March 12, 2014. The Agency did not dispute Complainant's claim that Agency personnel made the decision to reassign her twice. Complainant was required to attend Agency in-service training and departmental meetings (factors 1, 7). Complainant worked on Agency premises using Agency materials and equipment (factors 2, 3). She served the Agency from February 2009 to October 2012, a continuing relationship (factor 5). There is no indication that Complainant hired or paid assistants, and she was not in business for herself (factors 9, 11). While not making a determination on the merits, for purposes of stating a claim we find that sufficient information in the record suggests that the Agency had some control over Complainant's effective termination for this factor (14) to weigh in favor of joint employment. After the Agency's contract with staffing firm 2 started, on October 2, 2012, the staffing firm presented Complainant's name to the Agency for approval for inpatient/outpatient work. In response, the Agency wrote it could only utilize Complainant for outpatient work because she had a personality conflict with another worker in inpatient which caused a lot of problems. Complaint file, Exhibit F-7, emails dated October 2, 2012 and October 3, 2012. Shortly thereafter, staffing firm 2 provided Complainant no work. Factors 2, 8, 12, 13 and 15 Indicate that the Agency did not Jointly Employ Complainant Complainant's job, a Pharmacist, required a high level of expertise (factor 2). The staffing firms took care of Complainant's compensation and related benefits (factors 8, 12, 13). The Agency believed it was creating a contract employee relationship (factor 15). Factors 6 and 10 do not Point in Any Direction The record was not developed on factor 6. We are unclear whether providing pharmacy services is central to the Agency's mission (factor 10). 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 his employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. The FAD is REVERSED and the complaint is REMANDED for further processing in accordance with the following Order. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 This contact actually occurred on February 27, 2014. See complaint file, Exhibit F-3, postmark date. 2 Instead, the Agency should have provided counseling and a notice of a right to file a complaint. It then could have dismissed the complaint with appeal rights to this office if it believed the complaint did not fall within the purview of 29 C.F.R. Part 1614. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142407 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013