U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Britt S.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152847 Agency No. DON 15-00421-01581 DECISION On August 28, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 30, 2015, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for Staffing Firm 1 serving the Agency as a Test and Certification Coordinator from November 8, 2006 to January 30, 2015, at the Agency's Naval Air Welfare Center Aircraft Division (NAWCAD), NAVAIR PMA 209 in Patuxent River, Maryland, and worked for Staffing Firm 2 serving the Agency as Principal Test Engineer for Next Generation Jammer and Airborne Electronic Attack from March 2, 2015 to March 19, 2015, at NAWCAD, NAVAIR PMA 234 in Patuxent River, Maryland. On July 1, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his religion (Ascetic Greek Orthodox Christian) and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when: 1. Beginning around early 2013, he was subjected to derogatory remarks and harassment by government personnel predicated upon his religious belief and practices - his faith was mocked and he was ostracized for wearing prayer beads and black clothing during Holy Week and Feast Days. Upon his return from a religious pilgrimage to Greece in August 2014, this behavior escalated and continued to his first termination below. He also subjected to heightened scrutiny. 2. He was treated differently than a co-worker. 3. After filing a complaint with Staffing Firm 1 on January 30, 2015, he was subjected to a retaliatory campaign instigated by the Agency - he was placed on administrative leave, his Common Access Card (CAC) was revoked, and he was terminated on February 23, 2015. 4. After being hired by Staffing Firm 2 to serve the Agency, on March 19, 2015, the Agency again revoked his CAC card, he was placed on administrative leave, and he was terminated on April 17, 2015.2 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.3 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). 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), 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 (March 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, 4 - 7, 9 - 12 Indicate that the Agency Jointly Employed Complainant with Staffing Firm 1 Regarding Complainant's first job and Staffing Firm 1, the EEO Counselor interviewed the Agency Contracting Officer's Representative (COR), and the Agency Communication Navigation Surveillance/Air Traffic Management Test Information Manager, Test & Certification Lead for PMA 209 (Test Manager). The Test Manager relayed that she oversaw Complainant's work since 2012, and assigned him tasks. She relayed that Complainant's formal office was off base, but he came to the base to perform duties. The Test Manager relayed that in late 2013, due to performance problems, Complainant was asked to work on base so his performance could be more closely monitored.4 She relayed that she provided Complainant constant monitoring and guidance to assist him in his assignments, he received Agency training, and she gave and signed his performance assessment through the Contractor Performance Assessment Reporting System. While Complainant's leave benefit was provided by Staffing Firm 1, he was required to inform the Test Manager before taking leave (Factors 1, 4, 6, 7). Complainant served the Agency since 2009 (Factor 5). There is no indication in the record that he hired or paid assistants (Factor 9). Testing air equipment is part of the Agency's mission to provide for the defense of the United States (Factor 10). The Agency is in the business of government (Factor 11). Complainant wrote in his complaint that the Agency made decisions regarding his salary bonus and/or raises, and submitted an affidavit on appeal affirming this (Factor 12). Since this case involves Complainant's termination, it is especially significant that the Agency had joint or de facto power to terminate him - the Agency COR relayed that on or about January 30, 2015, the Agency told the general contractor over Staffing Firm 1 to cut off Complainant's services to the Agency and remove his CAC card due to performance/conduct issues. His service was cut off immediately, and he was terminated by Staffing Firm 1 on February 23, 2015. In a February 9, 2015, letter to Complainant Staffing Firm 1 notified him that if he did not find other employment therewith he would be separated on February 23, 2015. It explained that the Agency cut off his services to PMA 209. Factors 2, 8 and 13 Indicate that the Agency did not Jointly Employ Complainant with Staffing Firm 1 Complainant's duties required a high degree of skill (Factor 2). Staffing Firm 1 paid Complainant's wages and benefits (Factors 8, 13). Factor 3 Does not Point in Any Direction In her report, the EEO counselor wrote that Complainant relayed that he had to return his loaner "NMCI" laptop, which on appeal he writes means an Agency laptop - Navy/Marines Corps Intranet. The EEO counselor relayed that Complainant indicated he had a "company computer." In her report, the EEO counselor wrote that the Agency Test Manager relayed that Staffing Firm 1 provided Complainant his supplies to include a laptop and external hard drive. The record is unclear on whether the Agency provided Complainant equipment. Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's first position to qualify as joint employer with Staffing Firm 1 for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. Staffing Firm 2 - Insufficient Information There is insufficient information in the record to make a determination on whether the Agency exercised sufficient control over Complainant's second position to qualify as a joint employer with Staffing Firm 2. He started serving the Agency with Staffing Firm 2 on March 2, 2015, his service thereto was cut off on March 19, 2015, and he was officially terminated by Staffing Firm 2 on April 17, 2015. The record does not reflect the circumstances surrounding the service cut off and termination, except that according to the EEO counselor, the APMT&E Agency Program Manager for the Next Generation Jammer (Program Manager) relayed that the decision was made by his second line supervisor and above. The Program Manager relayed that the Agency assigned Complainant his tasking, but did not explain exactly what this meant. The Program Manager further relayed that Staffing Firm 2 provided Complainant his supplies, but did not identify any. Complainant wrote that the Agency supplied all his equipment, but did not identify any. The Program Manager relayed that Staffing Firm 2 approved Complainant's leave, and that he worked at Staffing 2's location off base, and would travel to base as needed. Complainant relayed to the EEO counselor that Staffing Firm 2 provided his benefits and salary, approved his leave, and he worked off site in the contractor's space, but was in the process of transitioning to working onsite. In his complaint, Complainant wrote that the Agency made decisions regarding his salary bonus and/or raises and approved his requests for leave - but given that he only served the Agency with Staffing Firm 2 for about 21/2 weeks, we wonder if he is really referring to Staffing Firm 1. On remand, the Agency shall further develop the record so an independent determination can be made on whether the Agency jointly employed Complainant with Staffing Firm 2. The FAD is REVERSED. ORDER (E0610) The Agency is ordered to process issues 1, 2 and 3, as recounted herein, in accordance with 29 C.F.R. § 1614.108. 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. With regard to issue 4, as recounted herein, the Agency shall gather information on whether it jointly employed Complainant with Staffing Firm 2. In so doing, it shall use this decision as a guide, including the common law control factors listed herein. Thereafter, the Agency shall either accept issue 4 for investigation in writing, or dismiss issue 4 in a new FAD. The Agency shall complete the actions in this paragraph within 60 calendar days after this decision becomes final.5 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 September 13, 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 We have reworded Complainant's claims to add more detail and more closely track his complaint. 3 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). This factor is especially significant in termination cases. 4 According to the EEO counselor, Complainant relayed he worked off-site in the contractor's space until around March 2014, and then split his time off and on site. 5 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152847 2 0120152847