Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120143162 Agency No. 14-61331-02570 DECISION On September 4, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 15, 2014, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for General Dynamics Information Technology (staffing firm) serving the Agency as the Principal Lead Managing Technician, an inventory management support function for its Naval Surface Warfare Center warehouses in Panama City, Florida. He was involved with organizing warehouse and shipment functions. On August 12, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his age (66) when, on May 12, 2014, he was terminated. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. The instant appeal followed. 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.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. Factors 1, 2, 3, 4, 5, 6, 7, 9 and 11 Indicate that the Agency Jointly Employs Complainant Complainant told the equal employment opportunity (EEO) counselor that the Agency controlled when, where, and how he performed his job on a daily basis. His staffing firm supervisor worked a mile off-base, and Complainant indicated that his communication with him was limited. Complainant wrote that Agency management directed most of his daily work, with the Agency's Project Manager, Production Manager, and Logistics person directly emailing him and giving him verbal directives on what to do. These Agency officials also gave directives to his staffing firm supervisor who in turn directed him. While the Agency's Product Manager told the EEO counselor that under the contract Complainant's staffing firm supervisor controlled when, where, and how Complainant performed his job, the Agency's Logistics person said the staffing firm supervisor and Agency officials did this. Also, the Project Manager, Production Manager, and Logistics person all told the EEO counselor that Agency officials assigned Complainant projects (see answers to question 6 in the counselor's report). On appeal, the Project Manager stated that he interacted almost daily with Complainant, and this included requests for him to perform routine tasks within the function the staffing firm assigned Complainant, such as pulling items from inventory for shipment to the Fleet. He wrote that since the Agency utilized an action item management system, nobody typically needed to ask Complainant because he received action requests in workflow. We note these requests still came from the Agency. Complainant wrote that the Agency reviewed his work. His yearly performance appraisal was done by his staffing firm supervisor. Agency officials met with Complainant's staffing firm supervisor weekly and Complainant's most recent appraisal, which was very positive, suggested input from Agency officials, such as their expressing they were satisfied and happy with the way things were going. Complainant wrote that the Agency monitored and controlled his leave and vacation. The Agency's Logistics person countered that when he started in 2013, he asked Complainant to inform him when he would not be at work so things could be coordinated, but Complainant quickly replied he did not work for him and all he had to do was keep his staffing firm supervisor informed of his comings and goings. The Logistics person suggested he then dropped the matter with Complainant. Because of his specificity, we credit the Logistics person. But the record also showed that Complainant's regular work schedule was set by agreement between the Agency and the staffing firm. While Agency officials stated Complainant would refuse to do certain work, we find on balance that Factors 1, 6 and 7 point to joint employment. Agency officials agreed that the work Complainant performed did not require a high level of skill or expertise (Factor 2). He worked on Agency premises using Agency materials and equipment (Factors 3 and 4). He both worked for the staffing firm and served the Agency from October 1997 until his removal in May 2014, a long duration (Factor 5). Complainant was not involved in hiring or paying assistants. (Factor 9). The Agency is a government department (Factor 11). Factors 8, 10, 12 and 13 Indicate Complainant is not Jointly Employed by the Agency Complainant's compensation was paid and taken care of by the staffing firm. (Factors 8, 12, 13). Warehousing is a support function, not part of the Agency's mission. (Factor 10). The Removal Factor Complainant contended that on May 12, 2014, his staffing firm supervisor notified him that the Agency Project Manager wanted him terminated because funds were no longer available for his position. According to Complainant, his staffing firm supervisor said he was shocked, but immediately terminated him. The Project Manager countered that prior to this the staffing firm attempted to move Complainant to the Supply Technician - ERP system which needed to be staffed, but Complainant refused to make the switch. He indicated it was not the Agency's decision to make, and it was the staffing firm which decided to remove Complainant, not the Agency. The Agency Production Manager and Logistics person said things to the EEO counselor consistent with this. On appeal, the Project Manager acknowledged that the staffing firm supervisor asked him for input on which of the two staffing firm employees should remain, and he provided feedback based on project requirements and his knowledge of the skills and capabilities of the staffing firm employees supporting the work. After the Agency gave its input, Complainant was terminated. Given this, for purposes of stating a claim, we find that the Agency had significant input in the removal decision, and this factor points to joint employment. 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 his joint 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 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 May 20, 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 0120143162 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120143162