U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tabetha M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120150813 Agency No. 200H-0626-2014103894 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated December 1, 2014, dismissing a formal complaint of unlawful employment discrimination alleging a violation of 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. § 1614.403. BACKGROUND During the relevant time, Complainant worked as a Research Assistant at the Veterans Administrative Medical Center (VAMC) in Nashville, Tennessee. In July 2014, Complainant sought EEO counseling at the Agency. The EEO counseling report reflects that Complainant stated that she was employed by Vanderbilt University Medical Center, and had a "WOC" (Without Compensation) appointment at the Agency in order to access the Agency's laboratories to conduct research. Complainant stated that in June 2014, she was informed that she could no longer have access to the Agency because its employees had complained about her. Complainant asserted that she believed the complaints stemmed from interpersonal encounters related to perceptions about her disability. In July 2014, Complainant was terminated from her Research Assistant position. In the July 28, 2014 termination letter from Vanderbilt University Medical Center, Complainant was notified that the decision was based on "failure to improve [her] performance and behavior to an acceptable level." The letter further indicated that her access to the Agency laboratories had been denied and "[t]his change to your worksite prevents you from performing important duties that can only be performed at the [Agency] site and that are required for the position to which you were hired." On October 6, 2014, Complainant filed a formal EEO complaint with the Agency asserting a claim of disability discrimination. Complainant alleged she was subjected to a hostile work environment, as evidenced by the following events: 1. Since May 15, 2014, Complainant has been reprimanded for displaying her disability symptoms, and these symptoms were labeled as unprofessional or disruptive. 2. On June 2, 2014, Complainant's supervisor (Agency Research Health Scientist/Assistant Professor of Orthopaedic Surgery and Rehabilitation at Vanderbilt University) placed Complainant on paid administrative leave and temporarily suspended her Agency access, which caused her to be excluded from experiments and laboratory activities. 3. On July 15, 2014, her supervisor denied Complainant's request for reasonable accommodation. 4. Since July 22, 2014, Complainant was required to send emails to both her supervisor and another co-worker whenever she had to make calls or meet with any Human Resources (HR) or EAD representative, and then inform them both on her return to work. 5. On July 30, 2014, Complainant's supervisor failed to comply with a previously approved component of her accommodation request. 6. On July 31, 2014, Complainant was informed that she would be terminated from her employment as a Research Assistant. In its December 1, 2014 decision, the Agency dismissed the formal complaint on the grounds that Complainant lacked standing, since she was neither an applicant nor employee of the Agency. After reviewing documents from Complainant, her supervisor and Vanderbilt University, the Agency concluded that Complainant was not a federal employee. Specifically, the Agency noted that Complainant's position "provides direct support to the faculty and staff at Vanderbilt Medical Center"; her WOC appointment was not to exceed a six-month period; she did not receive pay or benefits from the Agency; and she was terminated by Vanderbilt University and not the Agency. Complainant filed the instant appeal. She submitted no brief on appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the instant formal complaint for failure to state a claim on the basis 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 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. 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, 2016); 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 each exercises 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, material, 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 2-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. 0120131148 (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 firm 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 America, 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. In the instant case, the Agency's decision fails to reflect an analysis of the many factors to be considered. However, we find that the record is adequately developed to conduct a proper analysis. As noted above, Complainant performed her Research Assistant duties at the Agency's laboratories, using Agency equipment. Her work was part of the "regular business" of the Agency, a medical facility. However, the record shows that Complainant was hired by Vanderbilt University Medical Center and received her compensation and benefits from Vanderbilt. She was granted an unpaid appointment ("WOC appointment") to the Agency in order to use its laboratories to conduct research. Most significantly, the record shows that Complainant's work was directly supervised by an Assistant Professor of Orthopaedic Surgery and Rehabilitation at Vanderbilt University, and not Agency personnel. This supervisor provided Complainant with written performance plans, assignments, evaluations of her performance, with a letter of discipline, and ultimately her termination, all written on "Vanderbilt University Medical Center, Vanderbilt Orthopaedic Institute" letterhead. While Agency employees are alleged to have registered concerns about Complainant's behavior, the record again shows that it was Vanderbilt that banned her from the Agency's premises in early June 2014, while it was investigating these concerns. In sum, the evidence indicates that Complainant was not supervised and controlled by the Agency, but rather by an agent of Vanderbilt University Medical Center. Therefore, based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency did not exercise sufficient control over Complainant's position to qualify as her joint employer for the purpose for the 29 C.F.R. Part 1614 EEO complaint process. CONCLUSION The Agency's decision to dismiss the formal complaint was proper and is AFFIRMED. 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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 December 19, 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 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150813 2 0120150813