U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald K.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0120150250 Agency No. ARFTLEAV11OCT04295 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated September 26, 2014, dismissing one of various claims raised in 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked with and for the Agency in numerous positions. Between June 2008 and January 2010, Complainant was employed by L-3 MPRI, a private company under contract with the Agency. While with L-3 MPRI, Complainant was a training instructor for the Afghan National Army and later a Knowledge Management Advisor at the Counter-insurgency (COIN) Training Center in Afghanistan. In February 2010, Complainant was hired by the Agency as an Intelligence Specialist. Complainant's employment was terminated approximately two months later, in late April 2010. The next year, on April 25, 2011, Complainant was hired by the Agency as a Training Instructor with the COIN Center at Fort Leavenworth, Kansas. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On January 27, 2012, Complainant filed a formal complaint based on religion, disability, and reprisal for prior protected EEO activity. Specifically, Complainant alleged that he was discriminated against when: 1. From October 2008 to January 2010, L-3 MPRI managers subjected him to unwelcome comments and conduct; 2. From October 2008 to January 2010, a L-3 MPRI manager sent him anonymous, offensive, and threatening emails, although he did not learn they were from the manager until January 2011. 3. In 2008 or 2009: (a) A Lieutenant Colonel disclosed to L-3 MPRI confidential medical information about Complainant's voluntary hospitalization for a mental condition in a military hospital in South Korea in 1995, and (b) This confidential medical information was widely disseminated by L-3 MPRI to create the impression he was mentally unstable and unreliable. 4. In February 2009, a L-3 MPRI manager accused him of derailing an operation in July 2008, threatened to get him fired, and took repeated actions to damage his reputation. 5. On April 27, 2010, Complainant was terminated as a federal employee; and, 6. On August 2, 2011, Complainant was terminated as a federal employee. On March 27, 2012, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact. Complainant appealed the decision to the Commission. In our prior decision, we determined that the dismissal of claims 1, 2, 3(a), 4, and 5 was proper. However, the Commission remanded claims 3(b) and 6 to the Agency for further processing. Specifically, the Commission ordered the Agency to monitor Complainant's appeal to the United States Court of Appeals for the Federal Circuit regarding claim (6). Regarding claim 3(b), the Commission ordered the Agency to take the following action: Conduct a supplemental investigation on whether it jointly employed Complainant while he worked with L-3 MRPI from June 22, 2008 to his departure from L-3 MPRI in January 2010. Thereafter, the Agency shall make a written determination on whether to accept or dismiss claim 3(b) for investigation, in accordance with findings already made in this decision, and process them in accordance with 29 C.F.R. Part 1614. The Agency shall issue its final decision on its acceptance or dismissal of Claim 3(b), with appeal rights to this Commission, within 60 calendar days after this decision becomes final. See Complainant v Department of the Army, EEOC Appeal No. 0120122162 (October 15, 2012). Complainant filed a Request for Reconsideration with the Commission regarding the Commission's decision in EEOC Appeal No. 0120122162. On May 13, 2013, the U.S. Court of Appeals for the Federal Circuit issued a decision concerning the Merit Systems Protection Board's (MSPB) jurisdiction. Subsequently, Complainant's Request for Reconsideration regarding Appeal No. 0120122162 was administratively closed on June 25, 2013, when the Commission was notified that a civil action regarding the same claims was pending. See Complainant v. Department of the Army, EEOC Request No. 0520130120 (June 25, 2013). According to Complainant, the Agency should have resumed processing of Claim 6. Instead, on September 11, 2013, the Agency issued a new decision dismissing the "complaint in its entirety". The Agency reasoned that when Complainant filed her Request for Reconsideration, the Agency's obligation to comply with the order in EEOC Appeal No. 0120122162 was delayed until a decision was made on the Request for Reconsideration. When the Commission administratively closed the Request for Reconsideration, based on the civil action, and "no order issued to the Agency requiring compliance", the matter was closed and no further action was required. In correspondence dated December 3, 2013, the Agency rescinded the September 11, 2013 dismissal. Complainant was asked to provided "information and/or evidence which will assist me in making a determination on whether the Agency jointly employed your client" within fifteen days of receipt. Claim (6) was accepted for investigation.2 The record reflects that Complainant submitted the requested information to the Agency. At the same time, Complainant asserts that he also asked the EEO manager whether the Agency intended to investigate claim 3(b) along with claim 6, as he had been contacted by an EEO Investigator regarding claim 6. According to Complainant, on January 29, 2014, the EEO Manager explained that while that was the preference, the Agency was still in the process of determining whether Complainant was jointly employed with respect to claim 3(b). The investigation proceeded, without inquiry into claim 3(b). At the conclusion of the investigation of claim 6, Complainant requested a hearing before an EEOC Administrative Judge (AJ).3 While pending before the AJ, Complainant filed a Motion for Sanctions on September 3, 2014. In the motion (incorporated by reference in his brief for the instant appeal), Complainant argued that the Agency knowingly violated the Commission's order in EEOC Appeal No. 0120122162 when it dismissed the complaint in its entirety. Complainant's attorney contends that efforts to inform the Agency of its error were ignored. Instead, Complainant "was left with no recourse but to file an appeal of the Agency's [September 11, 2013] decision directly with [the Commission] which resulted in an additional delay in the processing . . . ." Complainant's 2014 motion further noted that "nearly two years have passed since [the Commission] issued its remand order, the Agency has not yet completed the required supplemental investigation of claim 3(b) or processed [the claim] as required. . . ." In response to Complainant Motion for Sanctions, the Agency argued that Complainant did not allege that it had failed to comply with any order by the AJ. As to claim 3(b), the Agency noted that it dismissed the complaint on September 26, 2014. It is this decision that is presently before us on appeal. In its September 26, 2014 decision, the Agency dismissed claim 3(b) for failure to state a claim. According to the Agency, Complainant was not jointly employed by the Agency while he worked with L-3 MRPI from June 2008 until January 2010. The Agency stated generally that MPRI "was the one controlling all matters of Complainant's employment including disciplining and evaluating performance." Further, the Agency challenged the declaration of (retired) Colonel [A], who claimed to have authority over Complainant, by noting that his early attempts to get Complainant to work for him were denied by MPRI. Complainant was later reassigned to Colonel A's project by MPRI as the result of disciplinary issues. Additionally, argued the Agency, Complainant's own statements conflict with Colonel [A's] assertions. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed claim 3(b) in the formal complaint for failure to state a claim on the grounds that Complainant was not its employee. 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 § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. In Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016), the Commission recently reaffirmed its long-standing position on joint employers" and noted it is found in numerous sources. See, e.g., EEOC Compliance Manual Section 2, "Threshold Issues," Section 2-III(B)(1)(a)(iii)(b) (May 12, 2000) (Compliance Manual);2 EEOC Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997) (Enforcement Guidance),'Coverage Issues," Question 2; Ma v. Dep't of Health and Human Servs., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998). We reiterate the analysis set forth in those decisions and guidance documents in this decision. Agencies often conclude that an individual is not an employee based solely on the fact that the individual performs work pursuant to a contract between the federal government and an outside organization and the outside organization, not the federal government, controls the pay and benefits of that individual. See, e.g., Helen G. v. Dep't of the Army, EEOC Appeal No. 0120150262 (Feb. 11, 20l6); Nicki B. v. Dep't of Educ., EEOC Appeal No. 0120151697 (Feb. 9, 2016). These elements are just two of the factors relevant to joint employment under the Commission's long-standing position and it is not at all surprising that they would be present when an individual working under a federal contract for a federal agency raises a complaint of discrimination. The term joint employer refers to two or more employers that exercise sufficient control of an individual to qualify as the worker's employer. Compliance Manual, Section 2-III(B)(1)(a)(iii)(b). To determine whether the Agency has the right to exercise sufficient control, EEOC considers factors derived from common law principles of agency. See Enforcement Guidance, "Coverage Issues" at Question 2. EEOC considers, inter alia, the Agency's right to control when, where, and how the worker performs the job; the right to assign additional projects to the worker; whether the work is performed on Agency premises; whether the Agency provides the tools, materials, and equipment to perform the job; the duration of the relationship between the Agency and the worker whether the Agency controls the worker's schedule; and whether the Agency can discharge the worker. EEOC Compliance Manual, Section-III(A)(1) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)); EEOC v. Skanska USA Bldg., Inc., 550 F.App'x 253, 256 (6th Cir. 2013) (Entities are joint employers if they 'share or co-determine those matters governing essential terms and conditions of employment) (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir. 1985); see also Ma, EEOC Appeal Nos. 01962389 & 01962390. The language of the contract between the agency and the staffing firm is not dispositive as to whether a joint-employment situation exists. In determining a worker's status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006) (while contract between staffing firm and agency provided that contract personnel were employees of staffing firm under its administrative supervision and control, agency actually retained supervisory authority over the contract workers). On the factor of the right to control when, where, and how the worker performs the job and to assign additional projects, complete agency control is not required. Rather, the control may be partial or joint and still point to joint employment. Shorter v. Dep't of Homeland Sec., EEOC Appeal No. 020131148 (June 11, 2013) (where both staffing firm and agency made assignments, this pointed to joint employment); Complainant v. Dep't of the Navy, EEOC Appeal No. 0120143162 (May 20, 2015), request for reconsideration denied, EEOC Request No. 0520150430 (Mar. 11, 2016) (where staffing firm wrote and issued complainant's appraisal with input from agency, this pointed toward joint employment). Likewise, where both the agency and staffing provided tools, material, and equipment to perform the job, this pointed to joint employment. Elkin v. Dep't of the Army, EEOC Appeal No. 0120122211, 2012 WL 5818075 (Nov. 8, 2012). Similarly, where a staffing firm terminates a worker after an agency communicates it no longer wants the worker's services, this supports a finding that the agency has joint or de facto power to discharge the worker. See, e.g., Complainants v. Dep't of Justice, EEOC Appeal Nos. 0120141963 & 0120141762 (Jan. 28, 2015); see also Skanska USA Bldg., Inc., 550 Fed. App'x at 254, 256 (where defendant removed staffing firm's workers from job site without challenge from staffing firm, and after such removals staffing firm generally fired worker, this pointed to joint employment); Butler v. Drive Auto. Indus. of American, Inc., 793 F.3d 404, 414-15 (4th Cir. 2015). The EEOC considers an entity's right to control the terms and conditions of employment, whether or not it exercises that right, as relevant to joint employer status. Enforcement Guidance, "Coverage Issues," at Question 2, Example 5 (where an entity reserves the right to direct the means and manner of an individual's work, but does not generally exercise that right, the entity may still be found to be a joint employer). In assessing the right to control, EEOC does not consider any one factor to be decisive and emphasizes that it is not necessary to satisfy a majority of the factors. In particular, the fact that an individual performs work pursuant to a contract between the federal government and an outside organization and is paid and provided with benefits by that organization, on its own, is not enough to show that joint employment does not exist. Rather, the analysis is holistic; all the circumstances in the individual's relationship with the agency should be considered to determine if the agency should be deemed the worker's joint employer. Enforcement Guidance, "Coverage Issues" at Qs. 1 and 2. In sum, a federal agency will qualify as a joint employer of an individual if it has the requisite right to control the means and manner of the individual's work, regardless of whether the individual is paid by an outside organization or is on the federal payroll. See id., at Q.2. As an initial matter, we note that this office ordered the Agency to "conduct a supplemental investigation on whether it jointly employed Complainant while he worked with L-3 MRPI from June 22, 2008 to his departure from L-3 MRPI in January 2010" in October 2012. See EEOC Appeal No. 0120122162. As set forth in extensive detail above, this case has a long and complicated procedural background. Since our prior order, the Agency dismissed the matter related to his employment status (claim 3(b)) on September 2013, to later rescind such dismissal in December 2013, and yet again dismiss the claim on September 26, 2014. In doing so, the Agency concludes that Complainant is not an Agency employee with limited analysis. The brief Agency decision makes no reference to the Ma factors. Instead the Agency lists "some of the following conclusions [that] support my decision", which include MRPI's ability to issue discipline and evaluate Complainant's performance. Further, the Agency generally notes that Complainant's statements conflict with Colonel A's assertion that he controlled Complainant's daily activities. In one paragraph, without considering many of the other factors, the Agency found it was not a joint employer. We find that the Agency's analysis is considerably deficient. Based on our review of the record, it does appear that MPRI issued Complainant's performance evaluations and discipline. MPRI also set the salary and provided payment to Complainant. The parties do not dispute that the work was performed at Agency facilities.4 However, their views diverge with respect to who controlled the means and manner of Complainant's work. In response to the instant appeal, the Agency, for the first time, considers the numerous factors comprising the law of agency. In addition to performance evaluations, the Agency has submitted a declaration by Complainant's MPRI supervisor, and "statement of work" ("Statement of Work Afghanistan National Security Sector (ANSS) Development and Fielding Program") documents for the years 2008 through 2010. We find the "statement of work" documents, each approximately 70 pages in length, to be of limited value. These documents only provide a broad overview of MRPI's contract with the Agency. These documents do not offer details about Complainant's specific position and the control exerted over him. The declaration by the MRPI Intel Team Chief, confirmed that MRPI set the rate of Complainant's pay and evaluated his performance. He also stated that with respect to instructions and guidance, while then did come "through MPRI leadership", it was "not uncommon that the [Agency] provided guidance directly to an individual contractor." Similarly, while MPRI approved leave requests, they were "typically run past [the Agency] to ensure they were ok" with the dates. When Complainant was reassigned to the COIN Academy, "sometime in 2009", The MRPI Intel Team Chief explained that "I cannot speak directly to how involved Colonel [A] was . . . ." Colonel [A], the Director of COIN from June 2008 through October 2010, stated that he "worked closely" with Complainant. According to Colonel A, he directly recommended to MPRI to Complainant should serve as one of his COIN Instructors. He directed his day-to- day activities, including the course content and when the classes would be taught. One of Complainant's COIN colleagues reiterates the Colonel's assertions, stating that "our activities were supervised by the same U.S. Army personnel." Colonel [A]convened weekly meetings to monitor their work and provide feedback. Complainant's colleague also described an incident where an Agency official told MPRI to fire and individuals and MPRI "immediately complied". In the statements Complainant provided to the Agency, he explained that the course was created in consultation with Agency officials. Agency officials set his working hours, provided his travel, and granted him access to the Agency's classified computer networks. The Agency contends that Complainant himself identifies his employer as MPRI and his supervisors as MPRI employees. This self-identification by Complainant, however, does not prevent a finding that the Agency exhibited sufficient control over Complainant's employment to be considered a joint employer. Complainant also describes having a "military supervisor" and a "civilian supervisor". 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 employer for the purpose of the EEO complaint process. While MPRI hired Complainant, the record indicates that the Agency did exert sufficient influence over termination decisions. Complainant did have an MPRI supervisory chain, but there is also evidence that Agency officials instructed Complainant on a daily basis. Agency officials collaborated directly with Complainant in developing the course curriculum. It was the Agency, not MPRI, that determined the hours and location of Complainant's work, in addition to transportation to those sites. CONCLUSION Accordingly, the Agency's dismissal of claim 3(b), on the grounds that Complainant lacks standing, was improper. The decision is REVERSED and the claim is REMANDED to the Agency for further processing from the point processing ceased in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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, 2017 __________________ 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 Complainant appealed the Agency's September 12, 2013 decision, which was docketed as EEOC Appeal No. 0120140021. The appeal was administratively closed, on May 22, 2014, when the Commission was notified that the decision had been rescinded. 3 EEOC Hearing No. 560-2014-00339X. 4 Complainant also provided instruction in classroom space provided by the Afghan National Army, rather than by either party. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150250 10 0120150250