U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clement D.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency. Appeal No. 0120142894 Agency No. DOI-OS-14-0049 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 8, 2014, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked with the Agency as a Translator/Caseworker at the Agency's Federal Labor Ombudsman Office in Saipan, Commonwealth of the Northern Mariana Islands (CNMI). As set forth in the "Statement of Work" detailing his position, Complainant was to provide: "Senegalese interpretation in addition to counseling, outreach education to alien workers; and assistance in applying for, and obtaining relief with appropriate Federal and CNMI agencies. Contract caseworkers play a critical role for the mission of the Ombudsman's office." Complainant was required to have the following abilities: be fluent in English and Senegalese; demonstrate critical thinking skills and good judgment in conducting interviews and make appropriate recommendations, referrals or interventions to the Ombudsman; determine where to refer the worker for resolution; provide assistance through the resolution process; make preliminary projections on the types of intervention and programs required to successfully address cases; prepare reports on current cases and complaints. Believing that he was subjected to unlawful discrimination, Complainant contacted an Agency EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On February 12, 2014, Complainant filed a formal EEO complaint with the Agency alleging discrimination based on race, national origin, color, and age.2 The Agency framed the claims as follows: (1) on March 2, 2013, the Agency terminated Complainant's contract for employment; (2) on March 2, 2013, Complainant was informed that the Agency would not pursue an appeal regarding the decision of the United States Customs and Immigration Service (USCIS) on his immigration status; (3) from June 2013 to August 2013, Complainant's work was directed by the Agency contracting officer, who required him to submit documentation not required of other workers in order to receive his wages; (4) on June 24, 2013, and September 23, 2013, Complainant received wages for work completed in February 2013; (5) on September 30, 2013, the Agency closed the Federal Ombudsman Office, without providing him with any advance official notifications; and (6) as of October 18, 2013, Complainant has not received wages for work completed in August 2013. The Agency dismissed the formal complaint for failure to state a claim. Referencing the factors set forth in Ma v. Dep't of Health and Human Serv., EEOC Appeal No. 01962390 (May 29, 1998), the Agency concluded that Complainant was not an Agency employee and therefore lacked standing to utilize the federal EEO complaint process. Specifically, the Agency reasoned that it did not control the means and manner of Complainant's work. Complainant performed with "minimal supervision", the Agency noting that while a Government Representative (GR) was responsible for "technical monitoring" of Complainant's performance, the GR was located in Washington D.C. The Agency acknowledged that it provided the office space, supplies and equipment needed by Complainant. However, the Agency stated that it did not provide him with annual leave, retirement benefits, or social security payments. Further, Complainant was paid $30,000 a year, based on a fixed-price contract with four one-year options. According to the Agency, Complainant "had been working on the contract for approximately 14 years." When the Agency determined that the office in Saipan was "outside the purview of the Department", it decided to close the office by the end of Fiscal Year 2013. The Agency stated that because of these factors, the Agency did not qualify as Complainant's employer or joint employer. 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 be deemed the de facto employer of an individual working under a contract 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"). The Commission has applied the common law agency test to determine whether an individual is an agency employee for the purpose of utilizing the 29 C.F.R. Part 1614 complaint process. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); Ma v. Dep't of Health and Human Services, 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 Services, supra. Factors (6), (10) and (11) Indicate Complainant May Not Be an Agency Employee It appears from the contract that Complainant is paid based on a fixed-price established for one year of services, which is paid out in monthly allotments (factor (6)). Complainant does not accumulate retirement benefits (factor (10) and the Agency does not pay social security taxes (factor (11)). Factors (1), (4), (5), and (9) Indicate Complainant May Be an Agency Employee The record reflects that the Agency entered into a personal service contract directly with Complainant. The Agency set the terms, including Complainant's duties and responsibilities. The Agency, via a Contracting Officer Representative (COR), monitored Complainant's performance and ensured that all interpreting specifications and technical portions of the work were met. Complainant alleges that the Agency officials required him to submit additional documentation to receive his wages, paid him in an untimely manner, and terminated him due to his race, color, national origin and age. Therefore, we find sufficient indication that the Agency controlled the means and manner of Complainant's performance (factor (1)). Moreover, we note that we have previously determined that the Agency was the de facto employer of another complainant in a virtually identical position alleging essentially the same claims. See Ahmed v. Department of the Interior, EEOC Appeal No. 0120142623 (January 29, 2015). The Agency also acknowledges that it provided the office space, supplies and equipment to perform his job (factor (4)). We acknowledge that the contract provides for one year of services. However, in its own decision the Agency states that Complainant has worked for the Agency for 14 years. Working for the Agency for over a decade would tend to indicate an employer/employee relationship (factor (5)). Finally, the record reveals that Complainant's work was an integral part of the Agency's business (factor (9)). As noted above, the Agency's own "Statement of Work" indicated that Complainant's services "play a critical role for the mission of the Ombudsman's office." Further, an Agency document describes Complainant's services as "pivotal in [the Ombudsman] accomplishment of its mission". Therefore, we find that, for the purposes of using the EEO process, the balance of the factors considered establish that Complainant is a de facto employee of the Agency. CONCLUSION The Agency's final decision, dismissing the instant formal complaint, is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with 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 (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 8, 2016 __________________ Date CERTIFICATE OF MAILING 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 We note that in its decision, the Agency erroneously identified the bases of Complainant's complaint as national origin, color, age and citizenship. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142894 7 0120142894