U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 Serita B.,1 Complainant, v. Eric Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120150846 Agency No. ARBRAGG14SEP03558 DECISION On December 31, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 4, 2014, dismissing her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUE PRESENTED The issue presented is whether the Agency properly dismissed Complainant's equal employment opportunity (EEO) complaint for failure to state a claim on the basis that Complainant was not its employee. BACKGROUND At the time of events giving rise to this complaint, Complainant was placed by a staffing firm at the Agency as a Special Security Representative at the Joint Special Operations Command (JSOC), J2, Special Security Office, at Fort Bragg, North Carolina. On November 17, 2014, Complainant filed a formal EEO complaint alleging that the Agency discriminated against and harassed her based on her sex (female/pregnancy) and disability (pregnancy/severe morning sickness) when: 1) Starting around July 8, 2014, after she informed her Agency supervisor (S1) that she was pregnant, the following occurred: a) S1 repeatedly asked extremely intrusive questions about the specifics of her birth plan, her medical treatment, and intent to use treatment such as an epidural, and expressed disapproval about Complainant's plans and use of prescription medication to treat morning sickness;2 b) on August 7, 2014, S1 added Complainant's husband to her contact list in the Agency's Lync instant messenger system; and 2) Complainant was terminated from her position on August 11, 2014. The record shows that, in July 2013, Complainant was placed by Staffing Firm 1 in her position at the Agency. When Staffing Firm 2 succeeded Staffing Firm 1 in July 2014, Complainant joined Staffing Firm 2 and continued serving the Agency in the same capacity. S1, an Agency supervisor, stated that she assigned Complainant her work involving physical, information, and personnel security. Complaint file, at 65. For example, S1 wrote that in November 2013, she assigned Complainant to edit the Standard Operating Procedures (SOP) for the office, with deadlines. Complaint file, at 94. Complainant stated S1 also assigned her the task of in-processing 100 people into Staffing Firm 2. Complaint file, at 23. Another Agency employee indicated that, during the transition period from Staffing Firm 1 to Staffing Firm 2, she was also involved in directing Complainant during the in-processing. Complaint file, at 93. S1 also stated that on August 1, 2014, she verbally counseled Complainant about her communication and teamwork in the office. Complaint file, at 56, 94. S1 wrote that Complainant was required to have 80 hours on each timecard, and worked between 8:00 a.m. and 5:00 p.m. based on the needs of the Agency. Complaint file, at 66. Complainant worked on Agency premises using Agency equipment. The Agency Contractor Officer's Representative wrote that, while the staffing firm was responsible for hiring and removal of the individuals it placed, Agency management provided input into these matters based on work performance. Complaint file, at 68. The record shows significant Agency involvement in the decision to terminate Complainant. The Agency requested that Staffing Firm 2 end Complainant's services to the Agency based on alleged performance/conduct issues. Within days, Complainant was terminated by Staffing Firm 2. In an email to Complainant, Staffing Firm 2 wrote that it was required to remove her from her position with the Agency based on three statements from Agency personnel and an Agency directive. Complaint file, at 20 -21, 90, 94. The Agency dismissed Complainant's EEO complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. The instant appeal followed. CONTENTIONS ON APPEAL The Agency argues that Complainant was not its employee. Rather, it asserts that she was employed by Staffing Firm 2.3 Complainant argues that she was jointly employed by Staffing Firm 2 and the Agency. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim on the basis that she 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 therewith. We begin our analysis by noting that some agencies have not applied the Commission's long-standing position on the issue of joint employment, a position that the Commission has announced a number of times and in a number of formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings. We note that the Commission's long-standing position on "joint employers" 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)4; 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; 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. Here, the analysis is straight-forward. The Agency controlled how Complainant performed her job. S1 assigned Complainant her work, set deadlines, advised her on her performance and demeanor, and assigned her additional projects. Complainant served the Agency from July 2013 until her termination in August 2014, a significant duration. She worked on Agency premises using Agency equipment, and the Agency set her working hours. Significantly, Complainant has alleged discrimination when she was terminated from her position with the Agency. Shortly after the Agency requested Staffing Firm 2 to cut off Complainant's services, the staffing firm expressed its belief that it was "required" to comply with the request and then terminated Complainant. As such, we conclude that the Agency had de facto or joint power to terminate Complainant. Based on the legal standards and criteria set forth in our previous decisions and guidance, we find that the Agency possessed sufficient control over Complainant's position to qualify as her joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. We reiterate that the analysis used in this case, as previously set forth in our guidance documents and in decisions such as Ma v. Department of Human Services, supra, is the proper analytical approach. CONCLUSION We find that the Agency had the requisite right to control the means and manner of Complainant's work, and that the Agency and Staffing Firm 2 acted as joint employers of Complainant; the complaint therefore states a claim upon which relief may be granted in the 29 C.F.R. Part 1614 EEO complaint process. Accordingly, the FAD dismissing the complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER The Agency is ORDERED to process the remanded claims, as redefined herein, 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 was issued. 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 was issued, 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: ______________________________ Bernadette B. Wilson's signature Bernadette B. Wilson Acting Executive Officer Executive Secretariat November 10, 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 While the Agency's definition of the complaint did not include this matter, it was present in the formal complaint. 3 It is undisputed that Complainant is not an independent contractor. 4 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150846 2 0120150846