Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120132837 Agency No. DON 13-47609-02352 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated June 14, 2013, dismissing her formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND During the relevant time, Complainant worked with Zeiders Enterprises (Zeiders), which contracted with the Agency to provide support in Fleet and Family Counseling at the Naval Air Weapons Station in China Lake, California. In the one-year contract, with the option to extend for up to four years, Zeiders agreed to "provide all necessary labor in accordance with the Performance Work Statement concerning comprehensive services, programs, personnel and administrative support for Fleet and Family Support Programs [FFSP] located throughout [various regions]." In turn, the Performance Work Statement included: deployment readiness, career support, relocation assistance, life skills education, clinical counseling, and sexual assault victim intervention. Believing that she was subjected to harassment by an Agency supervisor (a female Naval employee), Complainant contacted an EEO Counselor on February 13, 2013. Specifically, Complainant alleged while she was at Sexual Assault Response Counselor training, the supervisor was "teaching things a groomer (perpetrator) would do and asked me if she could touch me." While Complainant agreed, she said but the supervisor acted in an offensive manner when she purportedly "put her hand on [Complainant's] breasts... rested her hand on [her] nipple and acted as though she was picking a piece of lint off [her] clothes." Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed a formal complaint based on race, color, sex and reprisal. The Agency framed the claim as follows: on April 28, 2010, Complainant's first level supervisor touched her breast during training. The Agency issued the instant final decision dismissing the formal complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that although the alleged harassment occurred on April 28, 2010, Complainant waited until February 13, 2013 to contact an EEO Counselor. Alternatively, the Agency reasoned that because Complainant was a contractor and not a covered employee, she failed to state a claim. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The Commission's jurisdiction in the federal sector complaint process extends to employees and applicants for federal government employment. 29 C.F.R. Part 1614. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. A complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government. As noted above, in this case the Agency reasoned that Complainant is an employee of Zeider Enterprises, who has entered a contract with the Agency to provide services. A federal agency may qualify as the employer of a worker assigned to it by a staffing firm if it has sufficient control over the worker, regardless of whether the worker is on the federal government payroll. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). For example, a federal agency may be 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 EEQ Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, pp. 9-10 (Dec. 3, 1997) (hereinafter referred to as the "Guidance") (available at www.eeoc.gov). A "joint employment" relationship may exist where both the agency and the staffing firm exercise sufficient control over the worker under the standards set forth above. Guidance, pp. 8-9. The Commission has applied the common law agency test to determine whether an individual is an agency employee under Title VII. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006); Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). Specifically, the Commission will look to the following non-exhaustive list of factors: (1) the extent of the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (3) the skill required in the particular occupation; (4) whether the employer or the individual furnishes the equipment used and the place of work; (5) the length of time the individual has worked; (6) the method of payment, whether by hour or by the job; (7) the manner in which the work relationship is terminated, i.e. by one or both parties, with or without notice and explanation; (8) whether annual leave is afforded; (9) whether the work is an integral part of the business of the employer; (10) whether the work accumulates retirement benefits; (11) whether the employer pays social security taxes; and (12) the intention of the parties. Not all or even a majority of the listed criteria (hereinafter referred to as "the Ma Factors") need be met. Rather, the determination must be based on all of the circumstances in the relationship between the panics, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. See Ma v. Dep't. of Health and Human Serv., supra. We note, as an initial matter, that the Agency's decision summarily concluded that Complainant was a contractor without conducting an analysis of the Ma factors. Nonetheless, we find that the record before us is sufficiently developed for us to review various pertinent Ma factors and to make such a determination on appeal. Factor (4) Indicates Complainant may be a Joint Employee of the Agency The record reveals that the work was performed in Agency workspace (including "aboard ship") and the Agency furnished all equipment. Specifically, the contract with Zeiders noted that the Agency "will provide all facilities, computer equipment, landline telephone, tax, furniture, printer, forms and regulatory materials". Further, contract personnel were authorized to use government vehicles in the performance of their duties. Factors (1), (3), (9), and (12) Indicate Complainant is not an Employee of the Agency The contract, between the Agency and Zeiders, provides that Zeiders would design the organizational structure for FFSP and update the Agency to any changes. Zeiders was to "develop the framework and implement program services for installation programs, provide training, deliver status reports. . . ." Further, Zeiders was responsible for ensuring that all personnel met the necessary qualifications and performed all necessary functions (factor (3)). The Operations Supervisor, Complainant's first level supervisor, was also a Zeiders employee. The contract also specifically provided that Zeiders "shall not employ any person is an employee of Department of Navy . . . .[emphasis added]" Therefore, although Zeider employees were required to complete a background investigation and meet the Agency's "Standards of Behavior", we find that it was Zeiders that controlled the means and manner of Complainant's employment (factor (1)). We also find that the services provided by Zeiders, counseling and support for Agency employees and family members, are not an integral part of the work performed at the Naval Air Weapons Station (factor (9)). Instead, Zeiders' duty to provide support programs for the fleet and families indicates that Complainant is not an employee of the Navy. Finally, the intent of the parties reflects that Complainant is not an Agency employee (factor (12)). Complainant clearly considers herself to be a contractor. On appeal, Complainant contends "I was never told as a contractor I could make a complaint at any time [emphasis added]" and "I was not aware, as a contractor, about the process and was told I wasn't afforded the same benefits as GS personnel . . . ." Therefore, the Agency's dismissal of the complaint on the grounds that Complainant was not a federal employee or applicant for federal employment was proper.1 CONCLUSION Accordingly, the Agency's decision is hereby 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 In light of our disposition, we shall not determine whether the complaint was also properly dismissed on the alternative grounds of timeliness. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132837 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132837