Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120142750 Agency No. ARNGIC14FEB01343 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated June 17, 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 relevant time, Complainant was employed by Booz Allen Hamilton (BAH), which contracted with the Agency to provide support at the National Ground Intelligence Center (NGIC) in Charlottesville, Virginia. From approximately September 2012 until March 2014, Complainant worked as a Project Watch Officer. Believing that she was subjected to harassment, Complainant reported unwelcome comments to both the Agency and BAH management. Complainant's desk was moved to a different floor and an internal investigation was conducted. Additionally, Complainant contacted an EEO Counselor and initiated the EEO process. Informal efforts to resolve Complainant's concerns were unsuccessful. On June 3, 2014, Complainant filed a formal EEO complaint with the Agency based on sex (female) and reprisal. The Agency framed the claims as follows: a. Government employees assigned to the Biometric Multi-Modal Analysis Team (BMAT) made inappropriate comments and jokes of a sexual nature targeted at [Complainant]. b. [Complainant's] contract as a Systems Engineering and Technical Assistance (SETA) contractor with BAH was reduced in scope by the National Ground Intelligence Center (NGIC) resulting in [Complainant's] termination by BAH on or about March 27, 2014. In its final decision, the Agency dismissed the formal complaint for failure to state a claim. Without analysis or explanation, the Agency simply concluded that Complainant was a contract employee and therefore "not authorized to file a complaint." 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. 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 (March 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 EEO 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 Sevices, supra. As an initial matter, we note that in its decision the Agency does not even make reference to the Ma factors, and does not perform an analysis of those factors. In response to the instant appeal, however, the Agency proffers more specific contentions related to both the Ma factors and our Guidance. Complainant, on appeal, reiterates her belief that the Agency is a joint employer because it issued her assignments, provided her training, and she worked at an Agency facility with Agency equipment. In consideration of the parties' assertions on appeal, as well as the record before us, we shall now analysis this case under the Ma factors. Factors (5), (8), (10), (11), and (12) Indicate Complainant is Not an Agency Employee The record indicates that Complainant worked for BAH at the Agency for approximately 18 months (factor (5)). We find that, while not brief, this time period indicates more of a contractor relationship. According to the parties, BAH provided Complainant with leave, benefits, and withheld taxes (factors (8),(10), and (11)). With respect to the parties' intentions (factor (12), Complainant herself refers to BAH as her employer and to herself as a contractor. For example, in her formal complaint, Complainant expressly states that, "I worked as a contractor for the [Agency] . . . BAH was my direct employer and BAH contracted me to the [Agency]."Additionally, we note that Complainant first reported her problems with Agency employees to her BAH onsite supervisor. Factors (1), (4), (7), and (9) Indicate Complainant is a Joint Employee of the Agency NGIC, a subordinate command of the U.S. Army Intelligence and Security Command, "provides scientific and technical intelligence and general military intelligence on foreign ground forces." BAH contracted with the Agency to support NGIC's management of the Biometrically-Enabled Watch-List (BEWL) team, "a classified intelligence project that supports U.S. Armed Forces deployed worldwide." Complainant was a member of the BEWL team (factor (9), comprised of both Agency employees and BAH employees. The parties do not dispute that Complainant performed her duties in a top secret "government-controlled facility" and used tools, equipment and materials provided by the Agency (factor 4). According to the Agency, outside equipment could not be brought into such a controlled, secure environment. Complainant was also permitted access to classified government systems in order to perform her job. Therefore, due to the type of work Complainant was performing, with Agency equipment, at its secure location, we find that factors (4) and (9) indicate Complainant was an Agency employee. With respect to who controlled the means and manner of Complainant's performance (factor (1)), we find that the parties proffer conflicting accounts. The Agency asserts that Complainant's immediate supervisor was a BAH employee. The Agency asserts that this BAH onsite supervisor assigned Complainant work. According to Complainant, as part of the BEWL team, she was located on the third floor of the Agency's facility, while the BAH supervisor was located on another floor. Complainant asserts that the BAH supervisor was not part of the BEWL team and did not provide her with assignments. Instead, Complainant reported to Agency employees and simply checked in with the BAH supervisor on a weekly basis and submitted timesheets to him. On appeal, Complainant even argues that she would arrange her leave with Agency managers and altered her duty hours with Agency approval. For example, Complainant states she "worked out an arrangement where she showed up later [and] stayed later to finish her work" with Agency management officials. Therefore, it appears that while BAH was responsible for processing her leave and providing payment, Complainant sought and obtained Agency approval with respect to when she would be absent and what her duty hours were. As for the manner of termination (claim (7)), the Agency maintains that its contract with BAH provides that the contractor is responsible for hiring and firing. In its decision, the Agency reasoned that Complainant was terminated due to NGIC budget reductions. Specifically, the Agency states that it notified BAH of the need to eliminate positions in the Biometrics SETA contract because they were no longer required in light of the new budgetary restrictions. The Agency argues, however, that it did not specify which individuals to terminate. Complainant counters that the Agency retaliated against her by refusing to fund her position. Alleged Harassment In her formal complaint, Complainant alleges that soon after joining the BEWL team1, her Agency employee colleagues subjected her to "unwelcome, lewd, and disgusting comments about my sexual orientation, masturbation, and female anatomy." During conversations about political and social issues, two male Agency employees remarked that, "women have nothing to say so they should not [speak] when a man is speaking" and "women should be at home barefoot and pregnant." When these individuals learned that Complainant had purchased a Subaru Outback, they stated that "lesbians drive Subarus," and conducted an Internet search on the statement. Similarly, in response to Complainant sharing that she did considerable hiking, the two Agency employees responded it was "something lesbians do" and her clothing style was "lesbian in nature." Complainant also heard the same male employees discuss the physical appearance of women they saw at the gym and stated, "I would like to get inside that". According to Complainant, the two Agency employees threw stress balls at her on one occasion, and took her purse and emptied the contents on a center table on another occasion. Soon after the stress ball and purse incidents, on February 4, 2014, Complainant reported the ongoing harassment to her BAH supervisor during their weekly work status update. The same day, the BAH supervisor moved Complainant's work station to another floor and the Agency's EEO office was informed. From this new location, Complainant communicated with her colleagues through email to coordinate work efforts. But, "outside of the brief personal and work interactions, I spoke with no one from the team." Complainant asserted that, by the middle of February 2014, she was working with the EEO office regarding the harassment. Weeks later, in mid-March 2014, Complainant was told she would no longer be with the contract. According to Complainant, five BAH employees and a sub-contractor remained, but she was told "the government opted not to keep your position" due to a lack of funding. We agree with Complainant that the alleged harassment comments and behavior, perpetuated by her Agency supervisor and an Agency colleague, "set the tone" for her employment and was witnessed by most of the BEWL team. The Agency knew or should have known of the alleged behavior. Complainant's allegations themselves reflect a measure of control over her work environment by Agency officials. When considered with the fact that Complainant worked in an Agency facility, with Agency equipment, on a team comprised of Agency employees, with assignments issued by an Agency supervisor, we find that the Agency exerts sufficient control to be considered a joint-employer for the purposes of Title VII. CONCLUSION The Agency's decision to dismiss the complaint is 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 tends 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 January 28, 2015 __________________ Date 1 According to Complainant, the BEWL team was comprised of approximately eight Agency employees and eight contract employees. The "main perpetrators" of the harassment were two Agency employees, one was her direct supervisor. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142750 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013