Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 0120141849 Agency No. DTRA-14-J37CS006 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated March 19, 2014, dismissing a 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 period at issue, Complainant was a Research Assistant Professor at the Department of Health Policy, at George Washington University (GW), in Washington, D.C. Starting in December 2011, and pursuant to an Intergovernmental Personnel Agreement (IPA), Complainant worked in the Agency's Cooperative Threat Reduction Directorate, Biological Threat Reduction Program as the Regional Lead for Southeast Asia. Approximately two years later, Complainant was terminated effective November 30, 2013. Believing that her termination was discriminatory, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint based on race, national origin, and sex. The Agency framed the claims as follows: In addition to her removal, Complainant alleged that she was demoted, reassigned, threatened, harassed and treated differently compared to other non-East Indian employees in the J3/7CS as follows: (1) On November 1, 2013, a named Branch Chief of the Cooperative Biological Engagement Program (CBEP), informed Complainant that effective immediately, she was demoted from her position as the Lead for Southeast Asia Programs at CBEP. (2) On November 1, 2013, the Branch Chief, in the presence of a named Agency Captain threatened to terminate Complainant, but considered transferring her to the Science Team instead. (3) On November 1, 2013, the Captain berated Complainant due to her relationship with another member of the CBEP staff and verbally and harshly instructed her not to discuss the conversation with her colleagues at CBEP. (4) On November 4, 2013, Captain refused to reconsider the demotion or provide written reasons for her threatened termination, demotion, and removal from the position of Southeast Asia Lead Program Manager. (5) On November 4, 2013, after Complainant informed the Captain of a previously scheduled medical procedure, the Captain threatened that if the condition lingered, Complainant would be terminated. (6) On November 13, 2013, Complainant learned that "Dr. G" had made the decision to terminate her. (7) On November 21, 2013, Complainant was denied the opportunity to represent CBEP at the Biological Weapons Committee Meeting in Geneva although she was responsible for the design and implementation of the project being showcased. (8) On November 26, 2013, Complainant received notice from the Captain via e-mail that DTRA had informed GW of the decision to terminate her IPA detail effective November 30, 2013. In the instant final decision, the Agency dismissed the formal complaint for failure to state a claim. According to the Agency, Complainant was not an Agency employee and therefore lacked standing to file an EEO compliant. Specifically, the Agency noted that between December 1, 2011 and November 30, 2013, GW provided Complainant with pay, benefits, healthcare premiums, and social security taxes. Further, the Agency found that given the high level of skill required for her position, Complainant was considered a "subject matter expert" and was not conducting work that was an integral part of Agency business. The Agency stated that Complainant was a GW employee who was on a temporary assignment with the Agency. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the instant formal 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 the manner and means by which the work is accomplished.1 2. The skill required to perform the work (lower skill points toward an employment relationship). 3. The source of the tools, materials and equipment used to perform the job. 4. The location of the work. 5. The duration of the relationship between the parties. 6. The employer has the right to assign additional projects to the worker. 7. The extent of the worker's discretion over when and how long to work. 8. The method of payment to the worker. 9. The worker's role in hiring and paying assistants. 10. The work is part of the regular business of the employer. 11. The employer is in 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. Id. 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 (Mar. 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 the instant case, although the Agency decision references Ma v. Department of Health and Human Services, and lists the Ma factors, it did not analyze each factor. Instead, the Agency plainly stated that Complainant received pay, benefits, social security taxes, and health benefits from GW. Without evidentiary support, the Agency noted that Complainant's position required a high degree of skill and her work was deemed a non-integral part of the Agency's mission. On appeal, Complainant addresses each of the Ma factors. She argues that the vast majority of factors indicate that she should be treated as an Agency employee for the purposes of using the EEO process. Factors (1), (2), (3), (4), (5), (7), (8), and (9) Indicate that the Agency Jointly Employs Complainant Complainant argues on appeal that the Agency controlled when, where and how she performed her job (factor (1)). According to Complainant, she reported to the Agency's Deputy Program Manager and was required to obtain approval for absences from the Agency supervisor. Complainant contends that she "routinely represented the U.S. government at international meetings and had the authority to make financial decisions on behalf of the government." A review of the "Assignment Agreement" reflects that Complainant was required to receive ethics briefings from the Office of General Counsel and obtain a secret clearance. The Agency has not provided evidence indicating that GW, or some other non-Agency entity, supervised Complainant or monitored her performance. As for the type of occupation (factor (2)) and skills required (factor (3)), the Agency states that Complainant was a subject matter expert in a position which required a high level of skill. Complainant counters that her expertise improved her performance, but that her expertise was not required for the position, noting that she was replaced by a mid-level Army officer at the Agency. The parties do not dispute that Complainant worked at the Agency's facility at Ft. Belvoir, Virginia. The Agency provided Complainant with the materials and equipment necessary to perform her job. According to Complainant, the Agency provided her with a computer, a Blackberry, and a government credit card. Moreover, when Complainant traveled for Agency business, she used an Agency laptop that accessed Ft. Belvoir's servers and the Agency paid her travel expenses. Therefore, we find that factor (4), indicates Complainant was an Agency employee. In its decision, the Agency notes that Complainant worked at the Agency from December 1, 2011 until November 30, 2013 (factor (5)). Complainant argues on appeal that, based on her interactions with Agency officials and ongoing projects, she believed her IPA would be extended until December 2015. The Agency plainly concluded that Complainant was on a "temporary assignment." However, the Agency does not dispute that her two-year assignment could be extended for another two one-year terms. We find that an assignment lasting two to four years indicates a joint employer relationship. It is clear from the subject of Complainant's complaint, that the Agency maintained the ability to terminate Complainant (factor (7)). The record contains a letter, dated November 25, 2013, from the Agency's Human Resources department to GW stating its "decision to terminate the [IPA] detail of [Complainant] effective 11/30/13." In turn, GW informed Complainant, that as a result of the Agency's termination, her position with the university would be eliminated on January 17, 2014. Therefore, the Agency's decision to terminate Complainant indicates an employer/employee relationship. Regarding the accumulation of annual leave and sick leave (factor (8)), Complainant acknowledges that the Agency did not provide her with leave. However, the Assignment Agreement specifically notes that that if DTRA recognizes a holiday which is not recognized by GW, Complainant would be excused from duty and record the day as a "Personal Holiday." The record also reflects that, in October 2013, the Agency informed GW that Complainant would be placed in a furlough status. This treatment of Complainant, as other Agency employees, is indicative of a joint employer position. The Agency states in its decision that Complainant's work was not an integral part of Agency business (factor (9)). The record indicates otherwise. The Lead Project Manager for Southeast Asia position was described in the Assignment Agreement as including duties such as: performing as the lead on a number of interagency workgroups and collaborations; assisting DTRA and U.S. stakeholders with developing, coordinating, and implementing global health security projects in India. Complainant on appeal also submits an organizational chart that includes her job title, reflecting the importance of her position. Factors (10) and (11) Indicate that the Agency does not Jointly Employ Complainant Complainant acknowledges that the Agency did not provide her with retirement benefits (factor (10)) nor payments for social security taxes (factor (11)). These two factors indicate that Complainant was not an Agency employee, but rather a contractor. 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 her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. CONCLUSION Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below. 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 (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 April 1, 2015 __________________ Date 1 Another factor is whether the employer can discharge the worker. 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). This factor is especially significant in termination cases. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141849 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013