U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanna S.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 0120142256 Agency No. DTRA-14-J0-005 DECISION On May 14, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 23, 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 Site Manager at its Defense Threat Reduction Center in Fort Belvoir, Virginia. On January 7, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (African-American) and sex (female) when on November 1, 2013, it harassed and sexually harassed her when she was unfairly targeted for having an unauthorized electronic device (a cell phone) she did not have, and was stripped searched down to her bra and panties. According to Complainant, as the Site Manager, she was responsible for the operations and security of the visitor's entrance, and supervised personnel who process visitors when they enter or exit the building, including ensuring the validity of security clearances presented by them and ensuring that those without security clearances are properly escorted. The second line supervisor of the Agency Contracting Officer's Representative (COR) elaborated that Complainant was the staffing firm supervisor that ensured that staffing firm employees performed their duties as specified in the statement of work (contract) between the staffing firm and the Agency. He added that after government police grant a visitor access to the facility, Complainant supervised staffing firm employees who administratively provide the visitor with a temporary badge which denotes the individual's security clearance level and who monitor contractors as they perform cleaning services. The contract indicates that the staffing firm provides access support, locksmith service, janitorial and café services escorts, and that the staffing firm Site Manager provides daily management and supervision to all staffing firm personnel. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's 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.2 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. Factors 1 - 7 and 11 Indicate that the Agency Jointly Employs Complainant Pointing to language in the contract, the Agency argues that it did not have the right to control the manner and means by which Complainant accomplished its work. Specifically, the Agency references language that the government will not exercise any supervision or control over the contract, that service providers shall be accountable solely to the contractor (¶ 1.1), that the Site Manager shall have complete authority to act for the contractor (¶ 1.3.1), that the Site Manager is responsible for all day to day operations and coordinating on-site training and personnel requirements (¶ 1.11.1), and that the contractor shall develop and implement procedures to identify, prevent, and ensure non-recurrence of defective services (¶ 1.5). In an affidavit, however, Complainant referred to the Agency COR as her direct supervisor at the government, and wrote she performed her work under the close daily supervision of the COR. In his report, the equal employment opportunity (EEO) counselor wrote that in his telephone interview the COR, the COR indicated he was responsible for the daily activities of Complainant. The Site Manager has complete authority to act for the contractor and is the primary point of contact for the COR (Contract, ¶ 1.3.1). Under the heading "Performance Evaluation Meetings" the contract provides that the government may require the contract manager to meet with government personnel as deemed necessary. This suggests that the Agency, though evaluation of work, had some control over Complainant's work. Further, the contract requires that staffing firm employees wear specified uniforms, refrain from casual conversations of a personal nature, not eat or drink within their work area, and the Site Manager is on call 24 hours a day for emergency situations. Based on all the above, we find by a preponderance of the evidence that factors 1 and 6 point in the direction of joint employment. The Agency acknowledges that Complainant's job does not require a high degree of skill (factor 2). Complainant worked on Agency premises using Agency equipment (factors 3 and 4). Prior to the alleged discrimination, Complainant served the Agency for over three years (factor 5). In the contract, Complainant's hours are set as Monday through Friday, from 7:30 AM to 4 PM, but were flexible with COR approval, and she was on call 24 hours a day. Complainant acknowledges that her leave was arranged by her staffing firm. On balance, we find factor 7 points in the direction of joint employment. The Agency is in business - government business (factor 11). Factors 8, 10, 12 and 13 Indicate that the Agency does not Jointly Employ Complainant The staffing firm pays Complainant and takes care of her compensation and benefits (factors 8, 12, 13). Complainant's function of managing security aspects in an Agency facility is not the mission of the Agency - which is to counter weapons of mass destruction (factor 10). Factor 9 Does not Point in Any Direction The record does not reflect if Complainant is involved in hiring staffing firm employees who reported to her, and if so, the extent of her discretion. 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. The FAD is REVERSED. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations March 23, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 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 0120142256 7 0120142256