U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rina F. a/k/a,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160808 Agency No. 20DR-0ALC-2015105526 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEPC or Commission) from an Agency decision, dated December 3, 2015, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND In November 2013, Complainant was hired by Sterling Heritage Corporation (hereinafter "SHC") to work as an Academic Consultant for the Learning Standards Office at the Veterans Affairs Acquisition Academy in Frederick, Maryland. In March 2015, Complainant "suffered a serious injury as a result of childbirth which caused chronic pain and limited her ability to sit and stand for long periods of time." Complainant contacted both SHC and the Agency, in late July 2015, to notify them of her medical clearance to return to work and to request reasonable accommodations. In response, on August 19, 2015, SHC informed Complainant that her request could not be granted and she was terminated. Believing that the Agency's actions in this matter were discriminatory, Complainant filed a formal EEO complaint based on sex, pregnancy, disability2, and reprisal on October 9, 2015. Complainant alleged that she was subjected to discrimination when: a. management failed to respond to her requests for reasonable accommodation including, but not limited to a standing desk, work from home and flexible schedule for medical appointments; b. she was not permitting to return to work from maternity leave; and c. her employment was terminated on August 18, 2015. The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was employed by SHC, not the Agency, and therefore lacked standing to use the EEO process. Citing the contract between the Agency and SHC, the Agency noted that SHC was obligated to provide services for one year, as well as manage the personnel and financial resources used to perform such services. According to the Agency, the contract specifically stated that the Agency would not supervise contractor personnel. Moreover, it did not have the authority to grant leave, did not withhold taxes, and had no input in the decision to terminate Complainant. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed the instant formal 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 (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), (3), (4), (7), and (10) Indicate that the Agency Jointly Employs Complainant On appeal, Complainant contends that the Agency controlled the means and manner (factor(1)) of her employment. She argues that the Agency was involved from the start, with her selection. The record contains supporting e-mails, reflecting that Complainant was initially interviewed by SHC, but then she was interviewed by an Agency official who then, in turn, directed SHC to hire Complainant. The e-mails reflect that SHC did not hire Complainant until it received word from the Agency official. Further, Complainant states that she reported directly to Agency management for daily work assignments and oversight. According to Complainant, the Vice Chancellor, an Agency official, told her that the Agency's Director of Operations was her direct supervisor. She met regularly and received daily assignment from the Director of Operations, and contends she also met with the Vice Chancellor "multiple times each week to review progress and work on projects and deadlines." Complainant states that she submitted leave requests to the Vice Chancellor, and they were not sent to SHC until first approved by him. Her work was submitted exclusively to the Agency for review, states Complainant. In response to the appeal, the Agency only states generally that Complainant's work was coordinated and supervised by SHC and she reported to an unnamed "SHC Project Manager." Therefore, based on the instant record, we find the Agency's control over the means and manner of Complainant's employment indicate an employee/employer relationship. The parties do not dispute that Complainant performed her duties at an Agency facility (factor (4)) with Agency materials and equipment (factor (3)). Complainant attested that she used an Agency laptop, telecommunications network, and was provided an Agency email address. The record, and the claims themselves, reflect that Complainant had little discretion over when and how long she worked (factor (7)). The contract between SHC and the Agency required that the hours worked "coordinate with the schedule of the Agency". In terminating Complainant, SHC cited the Agency's inability to provide a flexible schedule and work from home. Factor (7) indicates the Agency jointly employed Complainant. With respect to factor (10), Complainant asserts that her work was integral to the Agency's mission. She was named by the Vice Chancellor as the "School's Training Coordinator" and was the point of contact for the Agency's logistics community. The contract with SHC supports her assertion. The "tasks" listed include: assisting programs with accreditation process to obtain National Accreditation of VA Acquisitions Academy, conduct quality assurance assessments, conduct analysis of assigned program data to determine requirements for modification of existing curriculum and new training programs. The Agency does not challenge Complainant's arguments with respect to factor (10). As noted above, whether an employer can terminate an employee is also a significant factor. In the August 19, 2015 correspondence, SHC informed Complainant that "[the Agency's] need for staff support does not provide us with flexibility with regarding to teleworking, flex-time, compressed or alternate work schedules or frequent absences. Further, we are not in a position to provide a standing workstation . . . within a Government facility. The Government will not provide this accommodation. Regretfully, your employment ... must be terminated. . . . ." Since Complainant could not continue to work for the Agency's Learning Standards Office, she was terminated from SHC. The instant circumstances reflect the Agency's ability to end Complainant's employment, even if indirectly. Factors (8), (12), and (13) Indicate that the Agency may not Jointly Employ Complainant The contract between SHC and the Agency provides for monthly payments. The parties do not dispute that Complainant received her paychecks from SHC (factor (8)). The Agency does not provide benefits, such as insurance or leave, to Complainant (factor (12), nor is she treated as an employee for tax purposes (factor (13)). 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 her employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. CONCLUSION Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is hereby REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. 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 (M0815) 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, 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 (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 April 21, 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 In its decision, the Agency erroneously identified disability as the sole basis for the 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160808 2 0120160808