U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emma B.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120160878 Agency No. 15-69450-02848 DECISION On December 30, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 2, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for a staffing firm serving the Agency as a Management Assistant at the Agency's Naval Air Station (NAS), Naval Facilities Engineering Command Southeast (NAVFAC SE), Regional Call Center (RCC) in Jacksonville, Florida. The Regional Call Center took customer email and telephone requests for maintenance and repair of physical facilities, and Complainant's function was to receive these requests and process them - categorize them as routine, urgent or emergency, ensure a work order and number was generated, approve work orders, and ensure the proper input coding. On November 2, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to harassment based on her sex (female) when: 1. In March 2014, a male Agency employee who worked as a Management Assistant, GS-6 (Agency co-worker 1) called her on the telephone and said twice she had a sexy voice, and when she hung up he laughed loudly - he was in the adjacent cubicle. Complainant also alleged she was harassed based on her sex and reprisal for prior protected EEO activity under Title VII when: 2. On April 4, 2014, Agency co-worker 1 came to her cubicle, cursed, yelled, accused her of not doing her job, and when she started crying rubbed her shoulders. 3. On August 22, 2014, Agency co-worker 1 prank called her, hung up, and laughed. 4. On August 27, 2014, the Agency Contractor Officer Representative (COR), who also served as the Lead Management Analyst, Regional Call Center, called a meeting which included Complainant, Agency co-worker 1, and two others. There the COR said Complainant was to move her work station (away from Agency co-worker 1), and warned that if she complained again about harassment (presumably by Agency co-worker 1), she would change Complainant to an unfavorable shift, and if it happened again she would be terminated. 5. In October/November 2014, the COR did not award her a Top Performer Award Complainant knew she earned. She said that the COR later gave her the award, averring she erred. 6. On June 22, 2015, in the Regional Call Center she was cornered by the COR who asked her if she was filing an EEO complaint and trying to get other contract employees to join in, and warned that she better not hear that Complainant filed an EEO complaint. Finally, Complainant alleged the Agency discriminated against based on her sex and reprisal for prior EEO activity when: 7. In May 2015, the COR provided position descriptions to a contract Maximo Management Assistant2 for (bridge to) Management Assistant, GS-5, Management Assistant, GS-6, and Lead Management Assistant, GS-7, and did not provide them to Complainant. Complainant wrote that both government and contract employees applied for these positions, including the Contract Maximo Management assistant who was selected for the position at the GS-7 level, and Complainant was discriminated against when she was not selected.3 8. On June 23, 2015, she was terminated.4 The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency. 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.5 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) 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 - 7, 9, and 11 Indicate that the Agency Jointly Employs Complainant On a daily basis, Agency employees assigned Complainant work, referred to as tagging. See Counselor's Report, Ex. E, at 7 of 11, Ex. P at page 2, Ex. K at pp. 5-6. The Agency asked Complainant to go to meetings, and directed her to get back to work. Counselor's Report, Ex. K at page 3, Ex. P at page 1, Ex. N, at Reference 3, page 1. Based on low error rates, the COR provided monthly awards to employees and contractors, including Complainant. The COR set Complainant's daily schedule. Counselor's Report, Ex. M, at page 5, Ex. N at page 6, Ex. Q at page 5. While leave was provided and paid for by the staffing firm, the Agency had final approval authority on permission to take leave. Counselor's Report, Ex. Q at page 5, Ex. K at page 5 (Factors 1, 6 - 7). Complainant's work was not at a high skill level (Factor 2). She performed her job on Agency premises using Agency equipment (Factors 3 - 4). Complainant served the Agency from August 2013 to June 2015 (factor 5). There is no evidence Complainant had any role in hiring or paying assistants (factor 9). The Agency is the business of government (factor 11). Because this case involves a termination, it is especially significant that the record shows the Agency had joint or de facto power to terminate Complainant. Specifically, on June 23, 2013, the Agency Contracting Officer emailed the President/CEO of the contracting firm, writing that Complainant was disruptive, that this would not be tolerated, and that it would be best to replace Complainant immediately. The Contracting Officer attached the resume of a potential replacement Management Assistant for the staffing firm's consideration. Counselor's Report, Ex. N, Reference 12, at 2. Within the hour, the staffing firm replied that that Complainant would be terminated immediately, and the potential replacement person would be given strong consideration. Id. at 1-2. On the same day, Complainant's staffing firm issued her a termination letter effectively immediately, writing she was being terminated because the customer and the staffing firm lost confidence in her ability to complete her duties without causing workplace disruptions. Factors 8, 10, 12 -13 Indicate that the Agency does not Jointly Employ Complainant The staffing firm paid and took care of Complainant's compensation (factors 8, 12 - 13). Processing requests for facilities maintenance and repair are not the mission of the Agency - the mission is to provide for the defense of the United States. 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. The FAD is REVERSED. 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 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 (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 May 3, 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 Maximo is the software program used for processing maintenance and repair requests. 3 In its FAD, the Agency recounted that this position was announced on June 23, 2015, and that Complainant did not apply. In response to the Agency's latter point, on appeal Complainant asks how she would be hired by the same people who just fired her. 4 In its definition of the complaint, the Agency omitted allegations 3 - 6, but a review of the counseling documents and complaint show they are part of Complainant's complaint. 5 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) (available at www.eeoc.gov). This factor is especially significant in termination cases. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160878 8 0120160878