U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E,1 Complainant, v. Rick Perry, Secretary, Department of Energy, Agency. Appeal No. 0120160842 Agency No. 14-0042-CBC DECISION On December 21, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 20, 2015, dismissing her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Specialist for USEC Inc. (which at one time was known as United States Enrichment Corporation), a private company. She worked with USEC's American Centrifuge Program in Piketon, Ohio. Complaint file, 145 - 146. On March 10, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race/color (Black) and reprisal for prior protected equal employment opportunity (EEO) activity (a 2007 Title VII and ADEA EEO complaint against the National Aeronautics Space Agency) when on July 11, 2013, an Agency Appeal Panel denied her appeal from its decision dated April 1, 2013, denying her a security clearance, resulting in her removal by USEC effective August 23, 2013. Following an investigation on the merits of the complaint, the Agency dismissed it for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. Complainant appealed. In EEOC Appeal No. 0120151101 (Jun. 17, 2015), the Commission reversed. We reasoned that there was insufficient information in the record to make a determination on whether the Agency jointly employed Complainant, and remanded the complaint to the Agency to gather more information. On remand, the Agency conducted a supplemental investigation, which we refer to as the complaint file when citing to page numbers. Thereafter, the Agency issued its second FAD dismissing the complaint for failure to state a claim, finding that Complainant was an employee of USEC, not the Agency.2 The American Centrifuge Program performed research for the Agency to facilitate the deployment of a new, cost effective advanced enrichment technology. To do so, USEC leased from the Agency the American Centrifuge Plant located in Piketon, Ohio. USEC was expected to engage in construction/refurbishment of the facilities. The Agency funded research, which USEC performed under Agency "Work Authorizations." USEC had licenses from the Nuclear Regulatory Commission (NRC), which regulated USEC's nuclear activities. Complaint file, at 84, 125, Ex. 2, at 12. To the extent NRC did not regulate USEC's nuclear activities, the Agency did. To maintain a license NRC requires, among other things, that the licensee establish and execute a quality assurance program, which applies to design, fabrication, construction, and testing of structures, systems and components of facilities and to managerial and administrative controls used to assure safe operations. Complaint file, 135. Complainant worked in the Quality Assurance Department of the American Centrifuge Program. The vacancy announcement for the position Complainant held lists the key responsibilities. These include providing independent oversight and assessment of the American Centrifuge Plant activities covered by the Quality Assurance Program and assessing its effective implementation, procurement, refurbishment/construction start up, and facility operations to ensure that the health and safety of the public and workers are adequately protected. Also included is scheduling, planning and performing and reporting assigned internal and external Quality Assurance audits and assessments, identifying and documenting deficient conditions, verifying completion and effectiveness of corrective actions, closing them as appropriate, and interfacing with regulators, such as NRC and the Department of Energy during inspections and assessments. Complaint file, 147. Complainant worked for USEC from May 6, 2010 to August 23, 2013. She stated that "the majority of work that I performed was for the Nuclear Regulatory Commission who had a licensing agreement with ACP [American Centrifuge Plant]." Complaint file, 71. This is a bit misleading since the record shows that Complainant was not doing work for the NRC - she was doing work for USEC to keep it in compliance with NRC regulatory requirements. Complaint file, at 147 & Exh. 2, at 12. In describing her interface with the Agency, Complainant stated that monthly for five or six months or longer she met with Agency officials and briefed them on their non-conformances and worked with them to resolve them, and conducted two "audits under the guise of the Department of Energy looking at their subcontractors who we also interfaced with, who were on our approved suppliers list." At one point she described the later activity as assisting the Agency with performing audits. When asked if she received any direction from an Agency manager or supervisor Complainant responded she did not know how to answer that since when she went over non-conformances with the Agency by their contractor the Agency would say in the meeting that this is what they needed to do to close out the non-conformance, and she would document this and interface back with them. Complaint file, 58 - 59 & 62 - 63. To the extent Complainant is implying that she was doing work for the Agency, this is misleading. The record reflects that via contractors the Agency provided various services to UCES such as decontamination and demolition, fire protection, sanitary water, and security. Complainant was tasked by USES to audit these services and identify deficiencies or non-conformances. Complaint file, 77 & Exh. 2. On appeal Complainant argues that she was jointly employed by the Agency, that the supplemental investigation did not include certain documents, and that she was discriminated against when the Agency denied her a security clearance. 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(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment therewith. 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)3; 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. 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). 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 find that the record is now sufficient. Here, Complainant worked for USEC and did not perform services for the Agency. Instead, on behalf of USEC she audited the quality of services the Agency provided via contractors to identify any deficiencies, and to the extent the Agency regulated USEC nuclear activity she may have performed audits to identify non-conformances. Complainant received all her assignments from her USEC supervisor and worked under his direction. Further, she worked on USEC premises (which were leased from the Agency) and used USEC equipment to perform her duties (some of which may have been leased from the Agency). USEC provided Complainant her compensation and benefits. In denying approving a security clearance for Complainant, the Agency did not do this in its role of employer. The FAD 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 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 It is undisputed that Complainant is not an independent contractor. The post office box address in the FAD for filing an appeal with this office is nearly 10 years out of date. Our current address is in the header of this decision. 3 The EEOC Compliance Manual and other guidance documents, as well as federal-sector appellate decisions, are available online at www.eeoc.gov. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160842 6 0120160842